Kinlace P/L v Mortgage Finance Australia Ltd (in liquidation)

[1993] FCA 446

4 4 6 ,1993

JUDGMENT NO. ..mms.ma .111~111n11n

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 388 of 1991

)

GENERAL DIVISION 1

BETWEEN :  KINLACE PTY. LTD.
Applicant

AND	MORTGAGE FINANCE AUSTRALIA LIMITED (IN LIOUIDATION)
First respondent 7
G.J. STASSEN Second respondent S. J . GOODMAN Third respondent CEDRIC BOHRSMANN VASS
PHILIP STUART DOUGLAS PURCELL
GRAHAM ARUNDEL FRANCIS
Trading as DUNHILL MORGAN SOLICITORS Fourth respondent

against the second, third and fourth respondents, but

CORAM: Beaumont J.

U: 25 June 1993

EX TEMPORE REASONS FOR JUDGMENT

On 10 May 1993, I made orders that the application

for relief made in the principal proceedings be dismissed as

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suspended the operation of this order until today, reserving
liberty to the applicant to apply to vary or discharge the
order of dismissal. The applicant now applies to vary the
existing orders by extending the period of the suspension of
the operation of the order of dismissal up to and including 23

July, 1993.

The principal proceedings were commenced in July

1991. Their unfortunate history up to the beginning of
December 1992, which need not now be restated, is described in
my reasons for judgment dated 3 December 1992 dealing with an
application by the fourth respondent to strike out the
proceedings for want of prosecution. The subsequent history

of the matter is as follows.

On 16 December 1992 the matter was listed for

directions. On that day the matter was set down for trial on

1 February 1993 and listed for further directions on 23

December. On 23 December 1992 the matter was stood over to 24

December 1992. On that day the applicant was given leave to

file, and did file, a further amended statement of claim.
Whilst the basic thrust of the applicant's claims remained the
same, significant amendments refining the applicant's earlier
pleading, were then effected. On 24 December, the 1 February
1993 trial date was vacated; instead the matter was listed

for directions on that day, i.e 1 February 1993.	It was then
ordered that defences be filed by 18 January, lists of	..
documents served by 1 February, with inspection by 22 February, applicant's affidavits to be served by 8 March and respondent's affidavits served by 29 March. On 1 February the matter was stood over to 5 March for further directions. On 2 February the applicant filed its lists of documents. The fourth respondent filed its list on 12 February and the third respondent did so on 20 April.
I interpose the observation that the second respondent was not served with the application in the principal proceedings and the further amended statement of
claim until 29 April, 1993.	I will return to this aspect
later.

On 5 March the matter was stood over to April for

further directions. In April, the third and fourth
respondents filed notices of motion returnable on 10 May

seeking the summary dismissal of the applicant's claim. On 10

May, as has been noted, I made an order for dismissal but

suspended this operation for a limited period.

On 7 May the applicant had changed its solicitors. The present solicitors for the applicant made this interlocutory application by notice of motion dated 17 June.

In support of its notice of motion the applicant

read a great deal of affidavit material. Some of this
evidence went to adjectival questions; other parts dealt, at
length, with the substantive issues in the principal
proceedings. The volume of the latter material is such that
it is not practicable to attempt to summarise it for present
purposes. Some aspects of it should however be noted.

In the first place, with one important exception to

be mentioned later, the affidavit evidence read by the
applicant appears to be consistent with the case it has
pleaded and is in a form which would be admissible on a final
hearing. None of the respondents sought to cross-examine any
of the applicant's deponents of these affidavits. Indeed, it
was not seriously suggested on behalf of the respondents that
the applicant had failed to establish that at the substantive

level there was a serious question to be tried.

The exception in the affidavit evidence which I had

mentioned lies in the evidence sought to be adduced from Tse

who is resident in Kowloon. At this stage he has not sworn an	Keung Yau, referred to as "Rocky". He is an important witness
affidavit. His evidence is only available at present in information and belief form from another witness. However, the material before me, which was not sought to be the subject of cross-examination, suggests that there is no reason why this witness could not now swear an affidavit in the form which will be admissible in a final hearing.

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However, and this is a matter of regret on any view, : _

none of the parties are yet ready for trial.	So far as the	:
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applicant is concerned no attempt has yet been made to inspect	C .
the documents mentioned in the lists of discovered documents	!
filed on behalf of the third and fourth respondents. This is unfortunate since the exercise could have been carried out by
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the applicant months ago, although the second respondent has	1
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not yet made discovery, having only recently been served. It	t '
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may be noted that the reason for such late service has not yet	! :
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been adequately explored in the evidence.	It should also be	I-
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noted that the second respondent has regrettably suffered	1
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several heart attacks in recent years. However, since I 1 .

propose today to grant a four week extension of the time

during which the order of dismissal will be suspended, these	i L . ~
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matters and their overall significance may be more fully	V ,
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explored on a future occasion.

The evident purpose in my suspending the operation

of the dismissal order and the reservation of liberty to apply	t.
on 10 May, was to permit the applicant to have an opportunity
to demonstrate, if it could, that it genuinely wished to
proceed and that it could propound a serious question to be
tried. To a large extent, in my view, the applicant has done
this, However, as has been said, the applicant's failure to
exercise promptly its entitlement to inspect the documents	, .
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discovered by the third and fourth respondents is regrettable

and should, as I propose, now be exercised. The affidavit	-	I
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evidence read by the applicant on this motion suggests that the applicant will be able to demonstrate that it has some	I /

prospects of success if it is able to pursue its substantive .

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claim for final relief.

The applicant's point now is that it is appropriate

in all the circumstances, given especially the recent change of solicitors, that the applicant should have a further four weeks in which to finalise its preparation for the trial.

With some hesitation I have come to the conclusion

that I should grant that limited form of relief. This is a
discretionary matter, but there are now present, for the first
time, indications that the applicant has actually taken
appropriate steps to prepare properly for a trial, and to some
extent at least, any immediate prejudice to the second, third
and fourth respondents, may be met by ordering that the

applicant pay their costs of this notice of motion.	Moreover,
the whole matter may be reviewed when a further directions
hearing is held as I now propose on 21 July 1993.	I further

propose to direct that the applicant lnspect the documents discovered by the third and fourth respondent within seven days of today.

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I make the following orders:

(1) Order that the operation of order 1 being the order of

dismissal made on 10 May 1993 be suspended up to and

including 23 July, 1993.

( 2 ) Direct that the applicant inspect the documents
discovered by the third and fourth respondents within
seven days of this date.

(3) Stand the matter over for further directions on 21 July,

1993 at 9.30 am. Reserve liberty to any party to apply

on 48 hours notice.

( 4 ) Order that the applicant pay the costs of the second, third, and fourth respondents of the notice of motion dated 17 June, 1993.

I certify that this and the preceding six

copy of the Ex

tempore Judgment herein of hls

on our Mr.

Associate

Dated :

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