National Australia Bank Ltd v Charlton

[2018] NSWSC 311

Supreme Court

New South Wales

Medium Neutral Citation:

National Australia Bank Ltd v Charlton [2018] NSWSC 311

Hearing dates:

12 March 2018

Date of orders:

12 March 2018

Decision date:

12 March 2018

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The notice of motion filed by the defendant Josephine Charlton on 23 February 2018 be stood over for hearing before the trial judge on 14 March 2018.

 

(2) I vacate the listing of the Notice of Motion filed by Kevin Michael O’Brien on 5 March 2018 and stand it over to 14 March 2018 for hearing before the trial Judge.

 (3) I reserve the question of costs.

Catchwords:

CIVIL PROCEDURE – application for stay of proceedings – application for vacation of hearing date – matter already assigned to particular judicial officer two days later for hearing – matter previously case managed by that particular judicial officer – application stood over for hearing by trial judge

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 67

Cases Cited:

Frith v Sipple (Court of Appeal (NSW), 11 September 1978, unrep)

Category:

Procedural and other rulings

Parties:

National Australia Bank Limited (Plaintiff)
Josephine Joan Charlton (Defendant)

Representation:

Counsel:
Mr C Colquhoun (Plaintiff)

  Solicitors:
Dibbs Barker (Plaintiff)

File Number(s):

2015/27843

EX TEMPORE Judgment

1. HER HONOUR: I note that there are technical issues which mean that we have been unable to contact the defendant by audio link. I granted an application in chambers for the matter to be dealt with by audio link as the defendant stated in an email to me, which was copied in to the solicitor for the plaintiff, that she lives in country New South Wales and was finding it difficult to attend Sydney for the hearing this morning.

2. What is listed before me this morning formally is a notice of motion by the defendant seeking a stay of the proceedings against her pursuant to s 67 of the Civil Procedure Act 2005 (NSW) as well as a vacation of the hearing date listed for this week, 14-16 March before Justice Walton.

3. Given Justice Walton has been case‑managing these proceedings for quite some time and given that it is his judgment from which the defendant seeks a stay, in accordance with Frith v Sipple (Court of Appeal (NSW), 11 September 1978, unrep), I consider it appropriate (as this is the first instance of the return of this motion to this Court) that that application for stay of judgment be heard by Justice Walton. It is regarding his judgment of 21 February 2018 that the stay is sought.

4. Second, given that Justice Walton has been managing the matter for some time, it is appropriate that he determine the arguments as to whether the hearing date should be vacated.

5. I note also a notice of motion by a Mr Kevin O'Brien dated 5 March 2018 which seeks Mr O'Brien be added as a defendant to the proceedings. The copy of the notice of motion on the court file does not have a return date, although I have been advised by Mr Colquhoun that the motion has been listed for tomorrow before Justice Walton.

6. It seems to me there is no sense in having that application dealt with at a different time to the notice of motion of the current named defendant Ms Charlton.

7. Orders sought by Mr O'Brien include vacation of the hearing date on the professed ground that he “has a right to defend as trustee of Phoenix Trust”.

8. Obviously these are matters with which Justice Walton would be well familiar and it seems to me consistent with the overriding purpose rule and s 56 of the Civil Procedure Act to properly use court resources and time and costs of the parties, for both notices of motion to be listed for hearing before Justice Walton on 14 March 2018. I accordingly make orders as follows:

1. The notice of motion filed by the defendant Josephine Charlton on 23 February 2018 be stood over for hearing before the trial judge on 14 March 2018.

2. I vacate the listing of the Notice of Motion filed by Kevin Michael O’Brien on 5 March 2018 and stand it over to 14 March 2018 for hearing before the trial Judge.

3. I reserve the question of costs.

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Decision last updated: 11 May 2018