Nolasco v Green

[1999] NSWSC 966

CITATION:	Nolasco v Green [1999] NSWSC 966
CURRENT JURISDICTION:	Equity Division - Construction List
FILE NUMBER(S):	55013/98
HEARING DATE(S):	6 August 1999
JUDGMENT DATE:	6 August 1999
PARTIES :	A. Nolasco Pty Limited (Plaintiff) Richard Elliot Green (Defendant)
JUDGMENT OF:	Einstein J

COUNSEL :
SOLICITORS:	Coudert Brothers (Plaintiff) Harris & Company (Defendant)
CATCHWORDS:
CASES CITED:	Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
DECISION:

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION - CONSTRUCTION LIST

EINSTEIN J

Friday 6 August 1999 - ex tempore
Revised 21 September 1999

55013/98 - A Nolasco Pty Ltd v Richard Elliot Green

JUDGMENT 1 HIS HONOUR: In this matter a judgment was handed down on 12 July 1999 ex tempore and in its revised form, dated 2 August 1999, clearly sets out the reasons for the making, by the Court on 9 July 1999, of the six orders made on that day and the making on 12 July 1999 of the further order made on that day. 2 There is before the Court a notice of motion filed this morning in which the plaintiff in the proceedings, as applicant, seeks orders that the motion be returnable instanter, that the date 9 August 1999 in order 2 of the orders made on 9 July 1999 have substituted for it the date 16 August 1999, and for the plaintiff to pay the costs of the defendant of the motion. 3 The motion is supported by two affidavits. The first is that of Mr Daniel John Massey, solicitor, of Coudert Brothers, made on 6 August 1999 and the second is an affidavit made by Mr Arides Nolasco on 6 August 1999. 4 Mr Massey appears on behalf of the plaintiff/applicant and Mr Kerr of counsel appears on behalf of the defendant. The notice of motion is opposed. 5 The Court has been informed by Mr Kerr from the bar table that the first notice of motion was received by his instructing solicitor on Thursday 5 August during the late afternoon. Mr Kerr has informed the Court, from the bar table, that the first time that the material sought to be relied upon, that is to say, the notice of motion and the two affidavits, were sighted or furnished to the defendant, was during the session of court this morning, this date being a date on which there has been a Commercial List directions hearing as well as a Construction List directions hearing and the day being a motions day in both those lists as well. 6 The defendant has not filed any evidence in response to the motion. 7 The affidavit of Mr Massey constitutes evidence of preparation by him since 9 July 1999 and evidence on behalf of the plaintiffs. The detailed preparations of that evidence are set out in paragraph 5 and following in the affidavit and Mr Massey deposes that he is presently preparing a detailed affidavit for Mr Nolasco, who is the principal of the plaintiff. That statement presently numbers over 30 pages and will apparently include a substantial number of annexures and exhibits. It is 60 per cent complete and will be completed by 20 August 1999. 8 Mr Massey further deposes that he has met with Mr Gary Colla, the plaintiff’s site foreman and is drafting a statement and affidavit on behalf of Mr Colla which is 50 per cent complete and will be filed on 20 August 1999. 9 Mr Massey also deposes that he is in the state of preparation of an affidavit to be made by Mr Ivison, the project manager retained by the plaintiff company, which is either 70 per cent complete and will be completed and filed on 20 August 1999. 10 He also deposes that he has continued to retain the services of Mr Zakos, who is preparing a lengthy report dealing with a number of matters, which is over 50 per cent complete, as Mr Zakos has informed Mr Massey, and to be ready for filing on 20 August 1999. 11 Mr Massey also deposes that he is meeting next week with Messrs Mackay and Noon, who were formerly employed by the plaintiff company, and he was preparing affidavits on their behalf; also that he will, next week, be taking an affidavit from the principal of MAC Electrics, one of the subcontractors on the project. 12 He also deposes that on 20 July 1999 his employed solicitor, Miss Bailey, Mr Zakos and Mr Colla attended the site at Terry Hills for three hours. 13 He also deposes that he has retained a consultant, Mr Blumer, of Hinds Blunden Consultants, to prepare a report which deals with the real costs incurred by the plaintiff in relation to the project and to issues concerning loss of profit and on site overheads. 14 Mr Massey also deposes that he believes that the plaintiff will be in a position to serve its evidence on 20 August 1999 in accordance with the orders of the Court. 15 Mr Massey is an officer of the Court and each of the matters to which he deposes is accepted by the Court as matters of fact, proving the steps which Mr Massey indicates have been taken by way of preparation of evidence on behalf of the plaintiff since July 1999. 16 The second affidavit, that by Mr Nolasco is annexed to this judgment. 17 To my mind, the application in the notice of motion should be refused for a number of reasons. 18 I am not satisfied that there is any reasonable basis to infer that Mr Nolasco is likely to obtain the financial accommodation to which he refers in his affidavit during the time frame which he anticipates nor generally. 19 I am not satisfied that Mr Nolasco has approached the significance of the orders made on 9 and 12 July 1999 in terms of the security for costs obligations, cognizant of the seriousness of those orders and of the significance of the obligation to comply with those orders. 20 The affidavit sought to be relied upon in a number of respects is an affidavit in respect of which Mr Nolasco deposes to material on information and belief. It appears, from the affidavit, that Mr Nolasco has approached the question of raising the requisite bank guarantee by way of security by approaching a number of persons. He does not state when it was that he approached Mr Scott Gant of Saxby Bridge, his financier. He does not state the dates or times when he commenced discussions with his colleague and business associate, Lindsay Allsop. He does not give the dates or times when he retained Mr Foley to negotiate with Mr Allsop and Mr Neville, with a view to raising $150,000. 21 The first information of specificity that one can glean from the affidavit as to these approaches is the statement in paragraph 10 of the affidavit, that on Wednesday 4 August he made an application to Mr Samson of Lumley Finance for a loan of $90,000. 22 All things considered, and bearing in mind the orders which were made on 9 and 12 July, making an application for a loan on the Wednesday before the Monday 9 August 1999, by which date the bank guarantee for $80,000 was to be required, even in the circumstances earlier referred to in the affidavit, appears to be leaving the matter extremely late. 23 I further take into consideration the failure of Mr Nolasco or the plaintiff to furnish, by way of evidence on the application, any material from any of the sources of finance to whom Mr Nolasco has apparently applied. 24 I further take into account the extreme lateness in the application pressed by the motion. It would have been extremely important, to my mind, for Mr Nolasco and the plaintiff, from the date when the judgment was handed down on an ex tempore basis on 12 July 1999, to take every step available to ensure that the financial matters necessary to be attended to in order that the security be provided, and provided to the letter, as provided for in the orders, would be available. 25 The lateness of the application itself and the circumstances in which the defendant is faced on such an application, having to meet it, as it were, on the last working day before the 9 August 1999, are also taken into account. 26 I further take into account a consideration of principle which is Pt2 r3 of the Supreme Court rules which provides that:

‘1. The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order.
2. The Court may extend time under subr (1) as well after as before the time expires whether or not an application for extension is made before the time expires.’

27    This rule in an exercise of the discretion in a particular factual context was under consideration by the Court of Appeal in Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573. 28 The case is authority for the proposition that the discretionary powers of the Court extend to granting relief by an order under the rules, to which I have referred, in respect of a self executing order of the Court pursuant to which, in default of compliance with a direction contained therein, an order for the dismissal of particular proceedings has been entered. To my mind, the existence of that rule and the jurisdiction of the Court in an appropriate case to grant relief, as occurred in Morgan v 45 Flers Avenue is a factor to be taken into account on the instant application. 29    The peculiar circumstances in which the relief granted on 9 and 12 July 1999 was given, are clearly documented in the reserved judgment and the plaintiff has failed to satisfy the Court, in the exercise of its discretion, that the order now sought in the notice of motion should be made. 30    The notice of motion is dismissed with costs.

I order that:

1. The notice of motion filed on 6 August 1999 be dismissed.
2. The plaintiff pay the costs of the defendant of the motion.

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Last Modified: 11/16/1999