McDonagh v Huxley - [2018] NSWSC 1316

Supreme Court

New South Wales

Medium Neutral Citation: McDonagh v Huxley [2018] NSWSC 1316
Hearing dates: 20 August 2018
Date of orders: 20 August 2018
Decision date: 20 August 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Adjournment not granted.

Catchwords: CIVIL PROCEDURE – application for adjournment – delay – where affidavit unsworn – where material provided between 3am and 4am on the morning of the hearing
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58
Category: Procedural and other rulings
Parties:
Sharon McDonagh (First Plaintiff)
McDonagh Management Pty Ltd (Second Plaintiff)
Gregory Huxley (First Defendant)
Vanessa Huxley (Second Defendant)
Adam Huxley (Third Defendant)
Rory McDonnell (Fourth Defendant/Applicant)
DIB Lawyers Pty Ltd (Fifth Defendant)
James Edward Spencer (Sixth Defendant)
Jeffrey Dougal Dawson (Seventh Defendant)
Vangory Holdings Pty Ltd (Eighth Defendant)
Vangory Services Pty Ltd (Ninth Defendant)
Benitch Investments Pty Ltd (Tenth Defendant)
Ghassan Dib (Eleventh Defendant)
Representation:
Counsel:
R Goodridge (Plaintiffs)
K Nunn, solicitor (Third, Fifth and Eleventh Defendants)
Fourth Defendant/Applicant (self-represented)
R Kent, solicitor (Seventh and Tenth Defendants)
Solicitors:
Firths The Compensation Lawyers (Plaintiffs)
JML Rose (First, Eighth and Ninth Defendants)
Mullane & Lindsay Solicitors (Third, Fifth and Eleventh Defendants)
Fourth Defendant/Applicant (self-represented)
Kent Attorneys (Seventh and Tenth Defendants)

File Number(s): 2014/311738

EX TEMPORE Judgment

HER HONOUR: The applicant, the fourth defendant to these proceedings, filed a Notice of Motion via his then solicitor, on 20 June 2018 seeking various orders, significantly including an order that default judgment entered against him in February 2016 be set aside. This morning he has sought a 14 day adjournment of this application.
The background to this application needs to be stated in short detail to understand the multiple difficulties associated with the fourth defendant's late and largely unmeritorious application.
The plaintiffs claim that they were duped by a series of financial advices and transactions in 2013. This led to a statement of claim being filed on 23 October 2014 and an amended statement of claim on 21 November 2014. The statement of claim was served on McDonnell in November 2014.
Having been case managed for a period, and various orders and applications having been made and dealt with by the Court, a hearing proper commenced before me on 26 March 2018.
The hearing proceeded to 6 April 2018. There was then a listing for oral submissions, and a timetable for written submissions leading to 20 June 2018 when the matter was finally listed for oral submissions, written submissions having been completed.
I understand from affidavit material before me that the fourth defendant, Mr McDonnell (“McDonnell”), actually attended court on one of the days of the hearing in late March and was aware that default judgment had already been entered against him in February 2016.

Judgment entered against McDonnell

The Court file shows that on 19 February 2016, after a series of timetables associated with it, default judgment was entered against McDonnell (as well as Mrs Huxley the second defendant) in an assessed sum of $1,098,183.60.
The court file and the affidavit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 1316
Decision Date: 20 August 2018

CaseChat Overview and Summary

The parties to this matter were McDonagh, the plaintiff, and Huxley, the defendant. The dispute arose from an application by the plaintiff to have the matter heard on an expedited basis. The matter was heard in the Federal Circuit Court. The legal issues before the court were whether the plaintiff's application should be granted and, if so, on what terms. The court was required to consider the delay in the proceedings and the unavailability of a witness. The plaintiff argued that the delay was due to an error by their solicitors and that the witness was unavailable due to illness. The defendant argued that the delay was inexcusable and that the application should be dismissed.

The court held that the delay was inexcusable and that the application for an adjournment should be dismissed. The court noted that the affidavit in support of the application was unsworn and that the material provided to the court was not provided in a timely manner. The court also noted that the application was made at a very late stage in the proceedings. The court held that the delay was a serious matter and that the plaintiff had not provided a satisfactory explanation for the delay. The court also held that the unavailability of the witness was not a sufficient reason to grant the application. The court held that the defendant had suffered prejudice as a result of the delay and that the application should be dismissed.

The court dismissed the plaintiff's application for an adjournment. The court held that the delay was inexcusable and that the application should be dismissed on the terms that the plaintiff pay the defendant's costs of the application. The court also held that the plaintiff was not entitled to recover any of their costs of the application.

Orders