Lord v McMahon (No. 2)

[2016] NSWSC 1153

Supreme Court

New South Wales

Medium Neutral Citation:	Lord v McMahon (No. 2) [2016] NSWSC 1153
Hearing dates:	19 August 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Application to vacate hearing date dismissed and hearing date of 31 August 2016 confirmed. Directions made. See paragraph [11] of judgment.
Catchwords:	PROCEDURE – judgment delivered on 24 November 2015 – Court informed during five subsequent directions hearings that parties’ experts are attempting to agree upon a form of final relief – on 6 June 2016 a date fixed on 31 August 2016 for final relief hearing - Court informed by counsel that timetable for presentation of expert evidence is now delayed – counsel by consent request to vacate fixed date of 31 August 2016 for final relief hearing – Court not confident that experts will reach agreement as to relief - whether the Court should vacate date of final relief hearing.
Legislation Cited:	Civil Procedure Act 2005, ss 56 and 59 Uniform Civil Procedure Rules 2005, r 31.20
Cases Cited:	Lord v McMahon [2015] NSWSC 1619
Category:	Procedural and other rulings
Parties:	Plaintiff: Heather Lord First Defendant: Stephen McMahon
Representation:	Counsel: Plaintiff: C.A. Vindin Defendant: G. Waugh   Solicitors: Plaintiff: Glenn Henniker Defendant: Grant John Hodgson
File Number(s):	2013/223473
Publication restriction:	No

EX TEMPORE Judgment

1. Yesterday on 18 August 2016, the Court was informed by counsel for the plaintiff in these proceedings, with the consent of counsel for the defendant, that it appeared that the timetable for the presentation of expert evidence in the final relief hearing had fallen behind. As a result, the Court was requested to vacate the final relief hearing fixed for 31 August 2016.

2. The Court is disinclined to take that course. There were a number of directions hearings in this matter after the Court gave judgment on 24 November 2015. They were: 14 December 2015, 17 February, 30 March, 3 May, and 6 June 2016.

3. At those hearings, the Court was told that the experts were attempting to reach agreement upon a proposal to give effect to final relief in the proceedings with respect to the dam issue and the driveway issue. Such agreement, or indeed even any definition of the final differences between the parties, was not able to be reached by 6 June 2016. So at a directions hearing on that date the Court fixed the final relief hearing on 31 August 2016 and provided for procedural steps to be taken to prepare for that hearing to take place. Those orders were the following:

“His Honour makes the following orders, directions and notations:

(1)   If the parties’ experts, Mr Diversi and Mr McVey (“the experts”) can agree upon all technical matters relating to the grant of final relief in these proceedings, then the parties should provide to my associate their joint experts report on such agreed issues by 4pm on 27 June 2016.

(2)   If the parties cannot agree on all matters in relation to final relief by 27 June 2016 then each party shall provide to the other party by Monday 4 July 2016 that party’s ex[pert engineering proposal to assist in the moulding final relief in the proceedings.

(3)   The parties will provide expert reports in reply to any of those served pursuant to Order 2 by Monday, 18 July 2016.

(4)   Confirm the hearing as to the form of relief is fixed for one day on Wednesday, 31 August 2016.

(5)   Direct the plaintiff to file and serve any submissions in advance of the relief hearing by Monday, 1 August 2016 at 4pm.

(6)   Direct the defendant to file and serve any submissions in reply in relation to issues of relief by Monday, 15 August 2016 at 4pm.

(7)   Direct the plaintiff to file and serve any submissions in reply on issues of relief by 4pm on 22 August 2016.

(8)   Further note that the parties are directed to consult about the formulation of agreed issues for the relief hearing and to file with the Court a list of agreed issues by Monday 29 August 2016.”

4. But by email yesterday and again orally this morning the Court has been informed that none of those procedural directions have been complied with. The Court accepts everything which counsel on both sides have said here today. And it does seem to the Court that counsel are trying their best to convey to the Court the situation as they understand it upon their instructions. But the picture which has been provided to the Court does not give the Court any confidence that the experts and the parties are getting on with either seeking to agree upon a form of final relief or to develop realistic proposals for the form of final relief.

5. Mr Vindin, counsel for the plaintiff, has sought the vacation of the date on 31 August and an opportunity for the experts to see if they can perfect an agreement, which he says is on the horizon between them. But Mr Waugh for the defendant says to the Court that he is unsure whether there is any such agreement in the offing. Because of such contradictory information, the Court cannot be confident as to what is going on between the experts and cannot just let this matter drift on any longer.

6. The matter will be brought to a head on the appointed day, 31 August 2016. The parties must get themselves as ready as possible for the final relief hearing on that day. This has gone on long enough. It is very unsatisfactory. To seek to achieve the result of a final relief hearing on 31 August the Court has made the directions which are set out below.

7. These directions should be strictly complied with by the parties and their legal advisers, who should impress upon the experts the importance of their compliance with these orders. If it is necessary for any party to ensure the attendance at Court of either of the experts on 31 August, the Court will also grant liberty to apply so that subpoenas can be issued to require the experts to attend if that becomes necessary.

8. But the parties and their experts should all understand that the Court is determined to bring this matter to finality as soon as possible. The Court accepts that because of the delays which have occurred it may not be possible to complete everything on 31 August but the Court will commence the hearing and attempt to achieve as much as can be achieved on that day.

9. The Court has taken this course because of the Court's overriding obligations under Civil Procedure Act 2005, ss 56 and 59.

10. The Court has granted liberty to apply if the expert for either party needs the making of further directions to assist that party’s expert better to define any proposal for final relief. The Court will be available to give further directions to the experts under Uniform Civil Procedure Rules 2005, r 31.20 for the benefit of either party. Liberty to apply can be availed of on 24 hours’ notice.

11. The Court’s orders, directions and notations therefore are the following:

1. Vacate the directions made by the Court on 6 June 2016.

2. Reserve the question of costs incurred between the parties and who should bear those costs arising out of the vacation of the orders of 6 June and of the parties' attendance before the Court today.

3. Direct the parties to make all reasonable efforts to have their experts Mr Diversi and Mr McVey agree upon technical matters relating to the grant of final relief in these proceedings by 5:00pm on Friday 26 August 2016.

4. If the parties and their experts cannot agree on all matters in relation to final relief by 26 August 2016, then each party shall provide to the other by 5:00pm Monday 29 August that party's own outline expert engineering proposal and report to support that party’s contentions as to the form of final relief in the proceedings.

5. The parties will provide expert reports in reply to any of those served pursuant to order 4 by 9:30am on Wednesday 31 August 2016.

6. Confirm the hearing of these proceedings as to the form of relief which will commence at 11:00am on Wednesday 31 August.

7. The parties may, at their option, serve written submissions on the other party as to the form of final relief at any time before 11:00am on 31 August 2016.

8. Note that if these orders are not complied with the Court will consider the making of indemnity costs orders against any party which the Court finds is responsible for noncompliance with the orders.

9. Direct the lawyers to serve upon their parties and upon the experts by email by 5.00pm today a copy of this judgment.

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Decision last updated: 19 August 2016