Grustein v Hasapaki

[2014] NSWLEC 173

Land and Environment Court

New South Wales

Medium Neutral Citation:	Grustein v Hasapaki [2014] NSWLEC 173
Hearing dates:	29 October 2014
Decision date:	29 October 2014
Jurisdiction:	Class 3
Before:	Biscoe J
Decision:	Application to adjourn the hearing refused
Catchwords:	PRACTICE AND PROCEDURE - application to adjourn hearing
Category:	Procedural and other rulings
Parties:	Evangelina Grustein (Applicant) Katina Hasapaki (Respondent)
Representation:	COUNSEL: K Gourlie, solicitor (Applicant) R Gration (Respondent) SOLICITORS: Watson & Watson (Applicant) GA Lawyers (Respondent)
File Number(s):	30665/04

EX TEMPORE Judgment

1. This is a contested application to adjourn a hearing. When the contempt charge brought by the respondent against the applicant for disobeying a Court order to transfer an easement to the respondent was called on for hearing this morning, the applicant by her solicitor applied for an adjournment. The applicant is not present in person.

1. The solicitor's firm was instructed by the applicant just over two weeks ago on 13 October 2014 and the matter was assigned to him on 15 October. He applies for an adjournment on the applicant's behalf.

1. The solicitor deposes in an affidavit that the applicant is aged 65 and recently underwent surgery, and that he has not been able to obtain full instructions from her due to her medical condition. There is a medical certificate dated 11 October 2014 certifying that she is unable to attend Court from 11 to 25 October due to medical illness, explaining that she was discharged from hospital after a large abdominal hernia repair and needed post-operatory rest. There is a more recent medical certificate from another doctor dated 27 October 2014 which certifies that she is suffering from headaches and dizziness and will be unfit for work or study up to and including 30 October. The solicitor deposes that he has been informed by her and believes that she has been referred for scans in relation to the headaches and dizziness.

1. I think that the following additional circumstances should be taken into account. There is no medical evidence that the applicant is unfit to attend the hearing or to give (or to have given) instructions. The motion for contempt has been on foot since 25 July 2014. Throughout the year (both before and after the filing of the contempt motion), the applicant has been represented by various solicitors. At directions hearings she was represented by counsel and also attended personally. The applicant has not complied with the Court's directions to file and serve her evidence before the hearing. She changed solicitors yet again earlier this month for reasons which have not been explained. The respondent's evidence on the contempt motion is documentary. A letter written by the applicant's then solicitors on 22 April 2014, prior to commencement of the contempt proceeding, makes clear that she refuses to transfer the easement in the manner specified and ordered by the Court, allegedly because of subsequent encroachments onto her land. The respondent has denied the allegation, there is no evidence to support the allegation before the Court, and even if it is true it has not been explained why it rationally affects compliance with the order.

1. In my view, the circumstances of the case, viewed in totality, are insufficient to grant the proposed adjournment. Accordingly, the application to adjourn the hearing is refused.