Huang v Attapallil
[2016] NSWSC 1904
•02 December 2016
Supreme Court
New South Wales
Medium Neutral Citation: Huang v Attapallil [2016] NSWSC 1904 Hearing dates: 2 December 2016 Date of orders: 02 December 2016 Decision date: 02 December 2016 Jurisdiction: Common Law Before: Garling J Decision: Application for adjournment refused.
Catchwords: PRACTICE AND PROCEDURE – civil – application for adjournment – whether it is in the interests of justice to grant an adjournment Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Biru Huang (P)
Alex Attapallil (1D)
Joseph Assi (2D)
Charles Thornley (3D)
Geoffrey O’Shea (4D)Representation: Counsel:
Ms Huang (P – in person)
A Attapallil (1D)
J Assi (2D)
Lander & Rogers (3D)
G O’Shea (4D)
File Number(s): 2016/332818 Publication restriction: Not applicable
EX TEMPORE Judgment
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Application is made by the plaintiff, Ms Biru Huang, for an adjournment of the hearing of the Notice of Motion brought by Mr Thornley, who is the third defendant in proceedings in this court.
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Ms Huang commenced proceedings on 8 November 2016 by way of Summons. The Summons was not accompanied by an affidavit as required by the Rules. When the matter was returnable before the Common Law Registrar on 17 November 2016, the Registrar made the following orders:
The plaintiff is to file and serve all affidavit material upon which she intends to rely by 24 November 2016 (on 22 November 2016 the plaintiff filed an affidavit);
The defendants are to file and serve such notice of motion and affidavits as they wish seeking to dismiss the proceedings by close of business on 17 November 2016; and
Any such motion so filed to be made returnable on 2 December 2016 before the duty judge.
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Mr Thornley filed and served a Notice of Motion and an affidavit in support, accompanied by an exhibit numbered CTH1 on 17 November 2016 in accordance with the Registrar's directions. The matter has been listed this morning before me.
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Mr Thornley is ready to proceed, and evidence has been read in support of his Notice of Motion. Ms Huang has read affidavits in response to Mr Thornley's Motion, first the affidavit of 22 November 2016, and secondly an affidavit sworn 1 December 2016.
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Ms Huang seeks an adjournment of the proceedings on the basis that she has not had sufficient time to prepare the proceedings and that other litigation, which is scheduled to take place next week in the Court of Appeal and in the Local Court, means that she has not been able to adequately prepare for the hearing of this Notice of Motion.
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In my view, the reasons advanced from the Bar table by Ms Huang are insufficient to justify an adjournment. Section 56 of the Civil Procedure Act 2005 obliges this Court when dealing with an interlocutory application such as the one made by Ms Huang to make orders which facilitate the just, quick and cheap resolution of the real issues in the proceedings.
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As well, in dealing with an application for an adjournment or the amendment of any document, the Court is obliged by s 58 of the Civil Procedure Act to follow the dictates of justice.
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In my view, the particular Motion is not a complex one. The fundamental question is whether it is open to Ms Huang to file a Summons in the form in which she has done, seeking relief which she has done. No doubt before filing the Summons, Ms Huang considered that matter carefully. Her failure to file an affidavit with the Summons seems to have been cured by the directions of the Registrar. It seems to me also that the issues with respect to Mr Thornley's application are within a relatively short compass and that there is no reason why the proceedings should not be heard today.
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I do not accept that litigation which is scheduled to occupy some days during the next week is an adequate or sufficient reason for causing the hearing of this matter today to be adjourned, and there is no material which supports a finding that there would likely be any injustice or prejudice to either of the parties, namely Mr Thornley and Ms Huang, if the hearing of that Notice of Motion proceeds today.
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Accordingly I refuse that application.
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Decision last updated: 28 December 2016
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