McMillan Investment Holdings Pty Ltd v Mangos

[2021] NSWSC 1635

Supreme Court

New South Wales

Medium Neutral Citation:

McMillan Investment Holdings Pty Ltd v Mangos [2021] NSWSC 1635

Hearing dates:

14 December 2021

Date of orders:

14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Hearing dates commencing 7 February 2022 vacated.

2. First, Second and Third Defendants to pay the plaintiff’s costs of the Motion.

3. Listed for Directions before Davies J at 9:30am on 25 February 2022.

4. Liberty to apply to the Associate to Justice Davies on two days’ notice.

Catchwords:

CIVIL PROCEDURE – vacation of hearing date – where ongoing failure of defendants to comply with court directions for the filing of evidence – where guillotine order not complied with – hearing date vacated

Legislation Cited:

Nil

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

McMillan Investment Holdings Pty Ltd (Plaintiff)
John Bernard Mangos (First Defendant/Cross-Claimant in First Cross-Claim)
Natalie Vivienne Mangos (Second Defendant/Cross-Claimant in First Cross-Claim)
Christopher Wallace (Third Defendant/Cross-Claimant in Second Cross-Claim)
PMFPL Pty Ltd (Fourth Cross-Defendant to Third Cross-Claim)
FD Legal Pty Ltd (Fifth Cross-Defendant to Third Cross-Claim)

Representation:

Counsel
J Svehla (Plaintiff)
F Amirbeaggi (First & Second Defendants/Cross-Claimants in First Cross-Claim)
C Wallace (Third Defendant/Cross-Claimant in Second Cross-Claim) (In Person)
M Cameron (Fourth & Fifth Cross-Defendants to Third Cross-Claim)

Solicitors:
SR Legal t/as Somerset Ryckmans (Plaintiff)
Yates Beaggi Lawyers (First & Second Defendants/Cross-Claimants in First Cross-Claim)
Self-represented (Third Defendant/Cross-Claimant in Second Cross-Claim
Sparke Helmore (Fourth & Fifth Cross-Defendants to Third Cross-Claim)

File Number(s):

2018/218097

Publication restriction:

Nil

Judgment

1. The plaintiff seeks by a notice of motion filed 10 December 2021 to vacate the hearing of these proceedings, which is fixed for ten days commencing on 7 February 2022. The fourth and fifth cross-defendants to the third cross-claim, PMFPL Pty Ltd and FD Legal Pty Ltd, do not oppose the vacation of the hearing dates. The first and second defendants who are represented by the same solicitors oppose the vacation of the hearing date. Mr Wallace, the third defendant, who is now unrepresented, opposes the vacation of the hearing date.

2. The first and second defendants oppose the notice of motion being dealt with today, because they say they wish to file evidence to answer the material in the affidavit in support of the motion by the solicitor for the plaintiffs. By reason of the continued failure of the defendants to file and serve their evidence, I made clear at the last directions hearing on 8 October 2021 that if any motion to vacate was filed, that motion was to be before me for hearing today.

3. The thrust of the evidence given by the solicitor for the plaintiffs is that there are currently Federal Court proceedings and there are about to be further Federal Court proceedings where there will be a crossover of issues between the present proceedings and what will be determined in the Federal Court proceedings. The intended Federal Court proceedings are to be commenced by liquidators of two, Sydney Allen Printers and Sydney Allen Manufacturing, which are associated with the plaintiff.

4. I have been case managing these proceedings since February 2019. There has been a constant failure to comply with orders made to prepare these proceedings for hearing. The parties were directed on 22 February 2021 to approach the listing manager to obtain a hearing date that hearing date was eventually appointed, as I have said, on 7 February 2022.

5. On 22 February I directed that the first, second and third defendants were to file and serve all evidence on which they relied in response to the plaintiff's evidence and to serve evidence in support of cross-claims that they had brought. They were to do that by 19 April 2021. They did not do so. They made no attempt to relist the matter to explain why they had not done so, despite liberty to apply being accorded to the parties.

6. On 2 June 2021 the parties agreed that an extension of time would be provided to the defendants to file and serve all their evidence. I made orders in chambers on 2 June, which gave the defendants until 28 June 2021 for the filing and service of that evidence. They did not do so. Nobody relisted the matter before me to explain why that had not happened.

7. The proceedings came back before me on 8 October 2021 where time was, again, extended to the defendants to file and serve their evidence, but on this occasion guillotine orders were put in place to ensure that the evidence would be filed, so that the other parties would have the time to respond to that evidence and the hearing could proceed on 7 February 2022.

8. Once again the defendants did not comply with the orders to serve their evidence. Evidence was served on a drip-feed basis from dates subsequent to 22 October until November 2021. The overall result is that the defendants have taken more than nine months to file evidence, which was directed in February to be filed.

9. It is perfectly clear to me that there is now not the time for the other parties adequately to respond to the evidence that has been served late, although without leave, at the present time. No application has been made by any of the defendants by notice of motion for leave to file and serve their evidence out of time.

10. I am also satisfied, from the evidence contained in the affidavit of the plaintiff's solicitor, that it is inappropriate for the present hearing to proceed on 7 February 2022. That is partly because of what is said in that affidavit in relation to the overlap of issues between the proceedings and the anticipated proceedings in the Federal Court on the one hand, and the present proceedings on the other. It is also because there are examination proceedings that have been conducted in the Federal Court and which have been adjourned to the first two dates of the hearing of the proceedings fixed in this Court.

11. What is likely to emerge in those examinations may have some relevance for the issues to be determined in the present case. Although the matter of commonality of issues is by no means clear, it seems to me entirely unsatisfactory that the proceedings in this Court should proceed to a final hearing until that matter is clarified.

12. When the proceedings were before me on 8 October 2021 I warned the defendants that if they did not file their evidence in accordance with the directions made I would likely vacate the hearing of 7 February. That does not appear to have been a sufficient impetus to them to abide by the orders of the Court.

13. For all of those reasons the hearing of 7 February 2022 will be vacated.

14. The principal reason, however, that I have vacated the hearing of 7 February was because there is not now sufficient time for the other parties to respond to the late evidence put forward by the defendants, even if that evidence is now complete. In those circumstances the first, second and third defendants should pay the costs of the plaintiff's motion of 10 December 2021.

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Decision last updated: 15 December 2021