In the Matter of Cazihaven Homes Pty Ltd Stoland Pty Ltd v Thurn, Peter James

[1996] FCA 784

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )         No. NG 3165 of 1994

IN THE MATTER OF CAZIHAVEN HOMES PTY LIMITED
(A.C.N. 003 816 233)

BETWEEN:STOLAND PTY LIMITED

(A.C.N. 003 790 056)

Applicant

AND:PETER JAMES THURN

First Respondent

WILLIAM GARY QUICK

Second Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:22 August 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:  The question before me is whether I should adjourn these proceedings in order to enable the applicant to obtain documents which it proposes to tender in order, in turn, to provide a foundation for the admission of expert evidence of an accountant (Mr Cawthorn) on the question of solvency.   Like a number of discretionary matters this is not an easy question.  This case has previously been set down for hearing and had its hearing date vacated.  There are, particularly at present and for the immediately foreseeable future, real difficulties with the management of the Court's list and making available time for the hearing of matters.  It is, to put it at its lowest, unfortunate both in
the interests of the parties and in the public interest where a matter which has been in the list for quite some time is not in a position, for whatever reason, to be heard and determined in the time set down for it.

The first respondent has not taken part in the proceedings before me: he is bankrupt and leave to proceed against him has not been sought.

If I grant an adjournment the second respondent will suffer prejudice.  He has, as his counsel has pointed out, come here today prepared to meet the case which, on the material filed, it appeared that the applicant proposed to make.  It is of course true that prejudice of that kind can, if in the end it appears appropriate to do so, be remedied to some extent by appropriate orders for costs: to some extent, but perhaps not totally.  I think courts now are less ready than they once were to act on the belief that an adjournment, coupled with an order for costs, is if not always then usually curative of problems of the sort that have arisen today.

On the other hand it is evident that if this case is determined in circumstances where the material on which Mr Cawthorn based his report is not available, then whatever the position may ultimately turn out to be if and when the material does become available the applicant will suffer prejudice; and at least in one significant respect, as I think is common ground, the applicant's inability today to tender the documents in question is not to be attributed to failures on the part of it or its representatives.  Additionally, as I suggested before the adjournment, I have a strong disinclination, if it can be avoided, to
decide a case on the basis of factual material that evidently gives a less complete picture of the circumstances than it might.

Ultimately of course, an applicant is bound by the case which it chooses to make and it is not up to the Court to exert itself mightily to remedy any deficiencies in that respect that might appear.  But the question before me is a discretionary one and I think in this case the appropriate course is to grant an adjournment to enable the applicant to take steps to obtain the material to which reference has been made.  I hope that it will be possible to find a day fairly soon when the matter can be dealt with once and for all.  It may also be that, whether the appropriate time is now or when the matter next comes before the Court, any order for costs that is made should take into account any wastage of time in Court which may turn out to have occurred.

[Discussion with counsel ensued].

I will list the matter on Monday, 28 October at 10.15 am.

Costs of today are reserved.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  2 September 1996

Heard:  22 August 1996

Place:  Sydney

Decision:  22 August 1996

Appearances:  Mr A C Hogg of counsel instructed by Simon Beverly & Associates appeared for the applicant.

Mr J T Johnson of counsel instructed by Ward Maxwell & Co appeared for the second respondent.