NWC Finance Pty Ltd v Borsellino

[2015] NSWSC 1702

Supreme Court

New South Wales

Medium Neutral Citation:	NWC Finance Pty Ltd v Borsellino [2015] NSWSC 1702
Hearing dates:	16 November 2015
Date of orders:	16 November 2015
Decision date:	16 November 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	The first defendant’s Cross-Claim against the Third Cross-Defendant Alex Assaf be determined separately from and after determination of the Statement of Claim and the Cross-Claim against the Second Cross-Defendant Ghassan Dib.
Catchwords:	REAL PROPERTY – possession of land – hearing of proceedings vacated on two occasions by reasons of problems related to the first defendant – desire by first defendant to cross-claim against solicitor and finance broker – failure to serve cross-defendants promptly – application by Plaintiff to sever the cross-claims
Category:	Procedural and other rulings
Parties:	NWC Finance Pty Ltd (Plaintiff) Elisa Borsellino (First Defendant/Cross-Claimant) Ghassan Dib (Second Cross-Defendant) Alex Assaf (Third Cross-Defendant)
Representation:	Counsel: A G Martin (Plaintiff) M Mandoh (First Defendant/Cross-Claimant) E Birkett (Second Cross-Defendant)   Solicitors: Summer Lawyers (Plaintiff) Legal Edge Australia Pty Ltd (First Defendant/Cross-Claimant) K & L Gates (Second Cross-Defendant)
File Number(s):	2013/209276

Judgment

1. The Plaintiff applied by Notice of Motion filed 27 October 2015 that the Cross-Claim brought by the First Defendant against her solicitor and a finance broker be determined separately from the proceedings on the Statement of Claim.

2. In the light of what has transpired this morning, it is not necessary to provide a detailed background to the bringing of that motion. It is sufficient to say that these proceedings have been fixed for hearing on two separate occasions and on each such occasion have been vacated for reasons brought about by the First Defendant's side of the proceedings. They were first vacated by Beech-Jones J on 2 April 2015 and thereafter by Garling J on 3 August 2015. That is in circumstances where this loan, which was made on 25 March 2013, went into default by the non-payment of interest within a month of that date and where the principal sum, which was due to be repaid on 25 June 2013, was not and has not been repaid.

3. I had made directions on 2 September that any Cross-Claims were to be served by 4 September 2015. They were not served by that date and the Cross-Claim against the solicitor who acted for the First Defendant when the loan was taken out was not served until 27 October. No explanation has ever been provided why it took that long to serve a practising solicitor.

4. The remainder of the Cross-Claim is against a finance broker. An affidavit provided this morning on behalf of the First Defendant sets out the difficulties that the First Defendant has had in locating and serving the finance broker. The position is that as at today he has not been served.

5. The solicitor for the Second Cross-Defendant (the solicitor) has appeared this morning. The Plaintiff no longer seeks that the Cross-Claim involving the solicitor be severed. In my opinion that was a sensible and practical approach to the problems in the matter. The solicitor's evidence will obviously be significant in the defence and Cross-Claim that the First Defendant brings against the Plaintiff and that solicitor in the matter. Separate hearings would have been undesirable if that could be avoided.

6. On the other hand the position of the Third Cross-Defendant (the finance broker) is far more peripheral. Counsel for the First Defendant does not resist the severance of the hearing of the Cross-Claim against the finance broker.

7. Accordingly, the Cross-Claim will proceed against the Second Cross- Defendant Ghassan Dib with the main proceedings.

8. Although the Second Cross-Defendant has only recently been served there is no good reason why the preparation of that aspect of the Cross-Claim and its defence should take an extended period. The Plaintiff says that if the contract interest rate is upheld by the Court at the final hearing there will be a shortfall in recovery over and above the property’s value. In circumstances where the hearing has twice been vacated through no fault of the Plaintiff I consider the proper approach should be to direct the parties to approach the Listing Manager to obtain a hearing date, such date not to be before 2 May 2016. That will allow adequate time to ensure that matter is ready for hearing.

9. I order that the Cross-Claim against Alex Assaf, the third Cross-Defendant, is to be heard separately from and after the claim made by the Plaintiff against the First Defendant and the Cross-Claim against the First and Second Cross-Defendants.

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Decision last updated: 17 November 2015