Johnson v Calvo (No 2)

[2016] NSWCA 75

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Johnson v Calvo (No 2) [2016] NSWCA 75
Hearing dates:	11 April 2016
Decision date:	11 April 2016
Before:	Leeming JA
Decision:	1. Ms Johnson’s notice of motion filed 4 April 2016 be dismissed.  2. Ms Johnson to pay Ellimark’s costs of and occasioned by the notice of motion.
Catchwords:	PRACTICE – application to vacate hearing – no sound basis demonstrated – application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 57
Cases Cited:	Ellimark Pty Ltd v Calvo [2015] NSWSC 1240
Category:	Procedural and other rulings
Parties:	Leigh Diane Johnson (Applicant) Athalie Calvo as Executrix of the Estate of the late Peter Calvo (First Respondent) Ellimark Pty Ltd (Second Respondent)
Representation:	Counsel: Applicant in person A Lockett (First Respondent) S A Lawrance (Second Respondent)   Solicitors: Stephen Wawn & Associates (First Respondent) Arnold Bloch Leibler (Second Respondent)
File Number(s):	2015/281258
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 1240 Date of Decision: 31 August 2015 Before: Bergin CJ in Eq File Number(s): 2013/353242

ex tempore Judgment

1. LEEMING JA: By notice of motion filed 4 April 2016, Ms Leigh Johnson, who is a solicitor as well as the second respondent to a pending appeal, seeks to vacate the dates on which the appeal is listed to be heard, which are 24 and 25 May 2016.

2. The trial took place over four days in May 2015. Ms Johnson was represented by solicitor and junior and senior counsel, so far as is revealed by the judgment coversheet. Judgment was delivered on 31 August 2015: Ellimark Pty Ltd v Calvo [2015] NSWSC 1240. Orders were not made until 22 October 2015, on which occasion Ellimark filed an undertaking that it would not sell or encumber certain shares in the capital of Australian Institute of Music Ltd before the final determination of the appeal.

3. A notice of intention to appeal was filed (and, I infer in the absence of any evidence to the contrary, served) on or around 25 September 2015, and the notice of appeal was filed on 25 November 2015. The appeal was listed for directions in February 2016, when counsel who did not appear at the trial appeared for Ms Johnson, and obtained a direction that a cross-appeal be filed by 16 March 2016. The appeal was listed for further directions on that date, which is when the appeal was listed for hearing. I note that the appellant’s written submissions had by then been filed, and that the respondents’ written submissions are due to be filed later this week.

4. Ms Johnson says in a short affidavit which was read without objection on her application that she asked a clerk to appear for her on 16 March 2016, with instructions to have the matter adjourned for around six weeks so that she could obtain legal representation. She says that the clerk failed to carry out her…