Oates v Hawkins (No 2) - [2011] NSWSC 1005

Supreme Court

New South Wales

Medium Neutral Citation: Oates v Hawkins (No 2) [2011] NSWSC 1005
Hearing dates: 31 August 2011
Decision date: 01 September 2011
Jurisdiction: Equity Division
Before: Ball J
Decision:
Active defendants' motion filed 31 August 2011 be dismissed.

Catchwords: PROCEDURE - civil - interlocutory issues - application to vacate hearing - filing of expert reports - whether reports relevant - whether raise new issue - whether insufficient time to obtain expert in reply - in circumstance where substantial part of expert evidence only submissions - where can accommodate prejudice with additional time - not vacate hearing date
Legislation Cited: Uniform Civil Procedure Rules (NSW)
Cases Cited: Oates v Hawkins [2010] NSWSC 491
Category: Procedural and other rulings
Parties: Tom Michael Oates (Plaintiff)
Garrick Michael Hawkins (First Defendant)
Scott Francis Tyne (Second Defendant)
Consolidated Capital Ltd UK Company Number 4169970 (Third Defendant)
Credit and Commercial Finance Pty Ltd ACN 074 539 683 (Fourth Defendant)
Mrs Evelyn Hawkins (Fifth Defendant)
Mrs Gillian Tyne (Sixth Defendant)
Sea Power Holdings Limited (Seventh Defendant)
Pegela Pty Ltd (Eighth Defendant)
Consolidated Capital Services Pty Ltd ACN 096 516 808 (Ninth Defendant)
Matrix Group Limited (In Liq) ACN 061 549 371 (Tenth Defendant)
Representation: Mr M J Leeming SC (Plaintiff)
Mr J C Hewitt (Plaintiff)
Mr R R Stitt QC (First to Sixth, Eighth & Ninth Defendants)
Mr J A N Hogan-Doran (First to Sixth, Eighth & Ninth Defendants)
No Appearance (Seventh Defendant)
No Appearance (Tenth Defendant)
Thompson Eslick Solicitors (Plaintiff)
Eakin McCaffery Cox Solicitors (First to Sixth, Eighth & Ninth Defendants)

File Number(s): 2009/290344

Judgment

This is an application to vacate the hearing of this matter which is set down for 15 days commencing next Monday, 5 September 2011.

Before dealing with the application itself, I should say something about the dispute and the events leading up to the present application.

The plaintiff, Mr Oates, alleges that in or about 1998 he, the first defendant, Mr Hawkins, the second defendant, Mr Tyne, and a Mr Graham formed a joint venture to arrange and manage structured finance transactions for a fee and that that joint venture was pursued through a company (now in liquidation) known as Matrix Group Limited which acted as trustee of a unit trust known as The Matrix Finance Group Unit Trust.

It is alleged that the company (as trustee) earned fees from the Western Australian government totalling $17,554,113.93. Those fees were paid by four cheques made payable to the company. However, it is alleged that, instead of banking those cheques into a company account in Australia, they were endorsed in favour of a company known as FSA International and paid into an account in the name of that company in Singapore from where the moneys are said to have been disbursed to companies associated with Mr Hawkins and Mr Tyne.

Paragraph 63 of the further amended statement of claim ( FASC ) pleads that the purpose of Mr Hawkins and Mr Tyne in causing the cheques to be lodged…

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.

Continue reading Oates v Hawkins (No 2)

Details

AGLC: Oates v Hawkins (No 2) [2011] NSWSC 1005
Case: [2011] NSWSC 1005
Decision Date: 01 September 2011

CaseChat Overview and Summary

The second respondent, Mr Hawkins, sought an interlocutory application to vacate the hearing of the proceeding brought against him by the first respondent, Mr Oates. The proceedings were related to a dispute over a commercial contract between the parties. The matter was heard in the Supreme Court of New South Wales. The primary issue for the court was whether it should vacate the hearing date for the trial of the proceeding, considering the late filing of expert reports by the parties, and the potential prejudice caused by the late filing.

The court had to determine whether the expert reports were relevant to the proceedings and whether they raised new issues. It also had to consider whether there was sufficient time to obtain an expert in reply, given that a substantial part of the expert evidence would be in the form of submissions. The court needed to balance the prejudice caused by the late filing of the reports against the need to accommodate the parties with additional time.

The court found that the expert reports were relevant and did raise new issues. However, it also found that there was sufficient time to obtain an expert in reply and that the prejudice caused by the late filing could be accommodated by granting additional time. The court held that it would not vacate the hearing date, as it could accommodate the prejudice with additional time. Consequently, the application to vacate the hearing was dismissed.

The court ordered that the hearing of the proceeding would proceed as scheduled, with additional time allocated for the parties to obtain expert evidence in reply. The court emphasised the importance of timely filing of expert reports and the need for parties to plan their expert evidence in advance to avoid such issues.

Orders