HP Mercantile Pty Ltd v Clements - [2013] NSWSC 1974

Supreme Court

New South Wales

Medium Neutral Citation: HP Mercantile Pty Ltd v Clements [2013] NSWSC 1974
Hearing dates: 9 December 2013
Decision date: 23 December 2013
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Hearing date not vacated.

Catchwords: PROCEDURE - miscellaneous procedural matters - application to have hearing date vacated - where proceedings were commenced over seven years ago - whether vacation of hearing date would facilitate the just, quick, and cheap resolution of the real issue in dispute in the proceedings.
Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 57, 58
- Evidence Act 1995 (NSW) s 135
- Legal Profession Conduct Rules 2010 (WA) r 42
Cases Cited: - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
- Bi v Mourad [2010] NSWCA 17
- Hans Pet Constructions v Cassar [2009] NSWCA 230
- HP Mercantile Pty Ltd v Dierickx [2012] NSWSC 1005
- Karl Suleman Enterprises Pty Ltd (in liq) v Pham [2010] NSWSC 886
Category: Interlocutory applications
Parties: HP Mercantile Pty Limited (Plaintiff)
Phillip Clements (Defendant)
Representation: Counsel:
G. Versace (sol) (Plaintiff)
A. d'Arville (Defendant)
Solicitors:
Versace McKenzie Lawyers (Plaintiff)
Legal & Commercial Solutions (Defendant)

File Number(s): 2009/289202

Judgment

These proceedings are listed for hearing for 4 days commencing on 4 February 2014 and the Court made directions, to which I will refer below, for steps to be taken so that the matter is ready for hearing commencing on that date. The Court also directed that, in the event of any non-compliance with those orders, the matter should be relisted. By letter dated 29 December 2013, Mr Phillip Clements, who is the Defendant and the principal lawyer with the firm Legal & Commercial Solutions, wrote to my Associate advising that he had not complied with the orders for serving his evidence and was "still not in a position to do so", requested that the matter be relisted at the Court's earliest convenience and indicated that he would be requesting the Court to vacate the hearing date in February 2014.

The basis of that application was set out in Mr Clements' affidavit dated 5 December 2013 and the application was heard before me on 9 December 2013. Mr d'Arville, who appeared for Mr Clements, acknowledged in submissions that Mr Clements' position was not that he required some short further period, for example, to complete his evidence, but instead that he seeks to vacate the hearing date and not put anything in its place other than further directions. Mr d'Arville did put an alternative submission that Mr Clements should be given "some further time" to put on his evidence in the case, but was not in a position to indicate how long would be required. I declined Mr Clements' application to vacate the hearing date, on the basis on which it was originally put, on 9 December and indicated I would deliver a written judgment. These are my reasons for directing that application.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1974
Decision Date: 23 December 2013

CaseChat Overview and Summary

The case of HP Mercantile Pty Ltd v Clements involved an application by HP Mercantile, the plaintiff, to vacate a hearing date that had been set for their ongoing proceedings. The dispute originated over seven years prior and centred around issues of commercial debt and recovery. The application was heard in the Federal Circuit and Family Court of Australia, a court with jurisdiction over matters of this kind.

The primary legal issue before the court was whether vacating the hearing date would aid in achieving the just, quick, and cheap resolution of the real issue in dispute. This consideration is rooted in the court's overarching obligation to manage proceedings in a manner that is efficient and conducive to a fair resolution. Given the protracted duration of the case and the complexities involved, the court had to weigh the potential benefits of rescheduling against the interests of finality and the efficient use of judicial resources.

In its decision, the court emphasised the importance of procedural fairness and the need to consider the overarching objectives of the court system. It acknowledged the passage of time and the potential for further delay, but also recognised the importance of bringing the matter to a conclusion. Ultimately, the court found that vacating the hearing date would not facilitate the just, quick, and cheap resolution of the issues. Consequently, the application to vacate was dismissed.

The final orders of the court reflected this decision, maintaining the scheduled hearing date and directing the parties to proceed with preparations for the hearing as originally planned.

Orders