Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 3)

[2019] NSWLEC 142

Land and Environment Court

New South Wales

Medium Neutral Citation:	Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 3) [2019] NSWLEC 142
Hearing dates:	27 September 2019
Date of orders:	27 September 2019
Decision date:	27 September 2019
Jurisdiction:	Class 4
Before:	Duggan J
Decision:	See paragraphs [28] and [29]
Catchwords:	ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers – discretionary powers – adjournment – injunction – release from undertakings – change of solicitors – dictates of justice – interlocutory relief – costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited:	ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 Hayward v Sydney Water Corporation [2019] NSWLEC 87 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Category:	Procedural and other rulings
Parties:	Omaya Investments Pty Ltd (Applicant) Dean Street Holdings Pty Ltd (First Respondent) TQM Design and Construct Pty Ltd (Second Respondent) Patrick John Elias (Third Respondent) Maurice Freixas (Fourth Respondent) Burwood Council (Fifth Respondent)
Representation:	Counsel: V Pannicker (Solicitor for the Applicant) C Leggat SC and L Nurpuri (First to Third Respondents) Submitting Appearance (Fourth Respondent) R White (Fifth Respondent)   Solicitors: Blackstone Waterhouse (Applicant) Salim Rutherford Lawyers (First to Third Respondents) Submitting Appearance (Fourth Respondent) Houston Dearn O’Connor Lawyers (Fifth Respondent)
File Number(s):	2019/228381
Publication restriction:	No

Judgment

1. The Applicant, by Mr V Panicker, solicitor, appears before me at 11.15am on Friday, 27 September 2019 seeking Orders that:

1.   Without any admissions, the Applicant seeks an adjournment of the proceedings on the following basis:

(a)   the Applicant does not press for items 4(a), 4(b), 7, 9 and 14 of    its Second Further Amended Summons dated 9 September 2019;

(b)    the Applicant is released from its undertaking as to damages in respect of damages relating to the interlocutory relief sought in the proceedings effective from today’s date; and

(c)   the Applicant pay any costs thrown away from the adjournment of the proceedings.

2.   The matter be listed for further directions on

2. Mr Panicker indicated that he was instructed to file a Notice of Appearance to act for the Applicant as his firm had accepted instructions from the Applicant to appear for it in these proceedings at about 9.30am that day. He also advised that it was his client’s instructions that the retainer of senior and junior counsel, who had appeared in the hearing, as well as the solicitors on the record, had been terminated. Accordingly, I excused those former representatives from further appearance in the matter.

3. The Respondents had not been notified of the application in advance and requested that the matter be stood down until 2pm to enable them to obtain instructions. Mr Panicker did not oppose this course.

4. At 2pm Mr Panicker read an affidavit sworn by him earlier that day. Mr Panicker relevantly deposed as to the circumstances his client relied upon for an adjournment of the proceedings and the terms upon which such adjournment should be granted in paragraphs [4] and [5] in the following terms:

[4]   The exceptional circumstances warranting this adjournment include that, without waiver of privilege:

a.   the Applicant, and in particular its director, Mr Antoine Bechara, had an irreparable breakdown in his relationship with his previous solicitor and counsel which resulted in the termination of their retainer early this morning;

b.   my managing partner, Danny Arraj and I, were engaged in this proceedings at approximately 9.30am this morning;

c.   I do not have the files in respect of the proceedings and have sought them from the Applicant’s previous solicitors as a matter of urgency; and

d.   I am informed and verily believe that Mr Piccollo, an independent expert engaged by the Applicant, was obstructed in his investigations at the subject site and would seek to undertake further investigations in the adjournment period – prior to the hearing yesterday, I am instructed the Applicant was not aware of this.

[5]   The adjournment is proposed on the following terms:

a.   without any admissions, the Applicant does not press paragraphs 4(a), 4(b), 7, 9 and 12 of the Third Further Amended Summons;

b.   the Court discharges the orders of his Honour Moore J made on 28 August (as extended to the present) otherwise restraining the First and Second Respondent from further works at the subject property;

c.   the Applicant to pay the Respondents’ costs thrown away as a result of this adjournment.

5. Each of the Respondents that appear in this matter opposes the giving of an adjournment in these proceedings.

The principles to be applied

6. Mr Leggat, senior counsel for the First to Third Respondents provided to me a number of authorities to assist me in the determination of this application, they included: Hayward v Sydney Water Corporation [2019] NSWLEC 87; UTSG Pty Ltd v Sydney Metro (No. 5) [2019] NSWLEC 107; Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174; ANZ v Mio Amico Pty Ltd [2013] NSWSC 716.

7. The principles to be drawn from these authorities can be summarised as:

1. The discretion to adjourn proceedings is derived from s 66 of the Civil Procedure Act2005 (NSW) (CP Act);

2. The discretion conferred by s 66 of the CP Act must be exercised in accordance with the overriding purpose identified in s 56(1) and the dictates of justice as required by s 58 of the CP Act (which include a mandatory consideration of the objects of case management as outlined in s 57 of that Act);

3. In balancing these relevant considerations the prejudice to be considered is not just the prejudice to the parties but also the delays, inefficiencies, and waste of public resources that may be occasioned to the system generally by the late adjournment of proceedings.

8. The Respondents also submitted that based on these authorities it was demonstrated that the late withdrawal of legal representatives (particularly where such withdrawal relates to a dispute as to the payment of fees) will not automatically be a reason to adjourn proceedings.

Consideration of relevant matters in the context of these proceedings

9. Taking each of the matters below that I consider relevant to the exercise of my discretion, in the circumstance of this case, I find that the Applicant should, on terms, have a short period of an adjournment to enable it to instruct its new legal representatives.

s 58(2)(b)(i),(ii),(iii) (iv) and s 56(3) of the CP Act

10. These proceedings have been the subject of an earlier hearing that took place over 8 days seeking interlocutory relief. At the conclusion of that hearing interlocutory orders were made and the matter was listed for an early hearing date – 11, 13, 23 and 24 September 2019. Those hearing dates were then modified at the request of the parties to be 23, 24, 25, 26, 30 September and 1 October 2019. During the course of the hearing, Friday 27 September was also fixed for hearing of the matter so as to ensure that the matter concluded. It was also indicated to the parties that the matter would continue on the day/s following 1 October 2019 (if required) to ensure that the matter was concluded.

11. The hearing commenced on the nominated date. Various interlocutory applications have been made during the course of the hearing by the Applicant and I have published a judgment and made orders consequent upon such applications. The expert evidence of the parties has been heard by way of concurrent evidence over the course of 3 days.

12. This application was made on the fifth day of the hearing. It had been anticipated by the representatives of all parties that the evidence was likely to be completed on that day.

13. The proceedings relate to the carrying out of development on a parcel of land. Development by way of excavation and construction of buildings has occurred. The substantive claims are largely the subject of documentary evidence. The expert evidence and the affidavit evidence of lay witnesses largely (but not exclusively) goes to the exercise of the Court’s discretion in the event that breach of the Environmental Planning and Assessment Act 1979 (NSW) is established. I also note that the Applicant has elected not to tender any lay witnesses in the proceedings.

14. The lengthy and detailed cross examination of the expert witnesses has concluded. What remains is the cross examination of the lay witnesses. That evidence is the subject of affidavits and therefore to that extent the Applicant is aware of the content of the evidence in chief.

15. It has been no part of any submission put before me by the Applicant, (with the exception of this application), that there has been any default in the preparation of this matter for hearing, such that the proceedings could not be adequately conducted within the time allocated or on the basis of the evidence as filed.

16. Accordingly, I do not consider that the adjournment is warranted on the basis of any inherent complexity, any failure to expeditiously prepare the matter for hearing, or the manner in which the hearing has been conducted to date.

Section 56(iv) – relative injustice

17. Mr Panicker deposes at [6]-[16] of his affidavit the reasons for the need to retain new legal representation in the following terms:

[6] Ms Mayssa Parrino has had carried of this proceedings since its commencement in early August 2017.

[7] The proceedings were urgently commenced and, following an 8 day hearing, resulted in an interim injunction which was extended until the trial of this matter – which was listed on an urgent basis.

[8] The date of this hearing resulted in the need for the Applicant to engage new senior and junior counsel.

[9] Without waiver of privilege, I am instructed that:   

a. over the past week, there has been an irreparable breakdown in the relationship between Ms Parrino, Mr Wright SC and Ms Walker, including as a result of:

i. refusing to follow instructions in respect of a number of issues;

ii. refusing to meet;

iii. failing to update the client and provide transcripts from the hearing;

iv. difficulties in Mr Bechara understanding senior and junior; and

b. these issues came to a head earlier today – resulting in the Applicant terminating the engagement of Ms Parrino, senior and junior counsel.

[10] My managing partner, Danny Arraj and I were first contacted earlier today to act in this matter.

[11] My first meeting with Mr Bechara in respect of acting in this proceedings was at approximately 9.30am this morning.

[12] I do not have the files relating to this proceeding.

[13] I do not have a full copy of the pleadings.

[14] I have requested the files from Ms Perrino at approximately 12.42pm this morning and attempted to call her mobile phone immediately prior to that email. As at the time of swearing this affidavit, I have not had a response.

[15] I cannot meaningfully prosecute the Applicant’s case without access to the files and time to review the documents and engage new senior and junior counsel.

[16] I cannot properly advise as to the extent of any further investigations – or any change in pleadings other than as identified above – without that material.

18. In making this application that is the sole evidence the Applicant has elected to put before me. From this evidence I am able to deduce that the relationship between the representatives of the Applicant and the company’s legal representation has been progressively breaking down. I am told that it came to “a head” earlier on 27 September 2019.

19. Whilst I accept that a party is entitled to the legal representation that they choose, and that a working relationship between client and legal representation is essential, the decision to terminate representation is the Applicant’s alone. The Applicant’s decision must have been made in the context of the fact that proceedings are part heard and that by taking this unilateral step it places at risk its capacity to properly present the case that it has brought before the Court. It can never be assumed that the Court will grant an adjournment of the proceedings merely because of a decision made by an Applicant as to the identity of its legal representation. This is not a case where the legal representatives have sought to withdraw without the consent of the Applicant. From Mr Panicker’s affidavit (and from their appearance before me on 27 September 2019) it appeared that they were ready, willing and able to continue if their retainer had not been terminated.

20. Further, the matters identified in [9] of the affidavit are scantily particularised such that it is difficult to accept that such issues warranted the wholesale removal of legal representation in the middle of a hearing. The Applicant must be taken to have weighed the risk of having to proceed with the hearing with its new legal representation when it decided to terminate the retainer of its previous legal representation. Mr Panicker has been prepared to accept instructions at this late stage and is therefore taken to have accepted that these proceedings may have to continue in the circumstances of the proceedings being part heard.

21. That being said Mr Panicker deposes that he does not have access to the pleadings, the evidence, or the transcript. I note that it was not until 12.42pm (ie after the application had been made and instructions accepted by his firm) that a request for such information was made of the former solicitor. To overcome this lack of material I propose to allow the Applicant to uplift the pleadings, evidence and transcript from the court file to be copied by them as a matter of urgency.

22. I further propose to vacate the hearing on 27 and 30 September 2019 to permit Mr Panicker to familiarise himself with the material, prepare for the hearing to recommence on 1 October 2019 and if possible to retain counsel to appear.

Length of adjournment sought and prejudice to respondents

23. It was submitted by the Applicant that with the terms proposed by them there would be little, if any, prejudice to the Respondents of the adjournment of the proceedings, and that an adjournment of at least three weeks was required to become familiar with the matter, make further investigations as to proposed new evidence, and further pleading amendment, and to retain preferred counsel and fix a hearing convenient to that preferred counsel.

24. The overriding purpose as set out in s 56 of the CP Act and the necessary expeditious disposition of these proceedings does not allow for dates to be fixed for new counsel’s availability. It appears from the affidavit read on this application that enquiries as to the availability of counsel has been limited to one senior and one junior counsel. Apart from identifying the availability of these counsel, there is no rationale, (apart from an unparticularised assertion), as to why three weeks would be required to prepare for the conclusion of these proceedings. Accordingly, I do not consider this matter as one that would weigh in favour of a vacation of the proceedings part heard until a date in November.

25. Further, as was submitted by the Respondents, notwithstanding the Applicant’s acceptance that the injunction should be discharged in the event of an adjournment and the Respondents released from undertakings given by them the First to Third Respondents are unlikely to be able to resume construction of the building. Those Respondents require a further Construction Certificate to continue construction. A VPA must be executed (on the case of all parties) before such a CC can issue. The Fifth Respondent has indicated through its counsel, Mr White, that until the proceedings are resolved his client is disinclined to execute a VPA when the capacity to do so is the subject matter of these proceedings. Further, even if a CC could be obtained the construction to date and future construction remains at the Respondents’ risk while the proceedings remain on foot. Accordingly, the release of the undertaking will not cure the prejudice nor will an order for costs.

26. In balancing the fairness to the Respondents with the fairness to the Applicant I take into account that it is the Applicant that has: commenced the proceedings; taken these steps with the attendant risk to terminate the retainer of its legal representatives; and, through the proceedings has effectively put a stop to the Respondents proceeding with the development in the interim.

27. I further take into account that both the interlocutory hearing and the present hearing were in effect expedited in so far as they were set down at the earliest possible dates to facilitate the quick disposal of the Applicant’s case having regard to the fact that building work was being undertaken. That situation has not changed and a further adjournment will likely render unavailable further dates from those available to others who may have similarly urgent matters.

Conclusion and orders

28. For the reasons I have outlined above I determine that in the exercise of the Court’s discretion the Applicant should be, on the terms consistent with those offered by it, given a short adjournment to enable it to expeditiously prepare to continue the hearing of this matter that has already been part heard for 4 days.

29. The Court orders that:

1. Pursuant to UCPR rule 7.26, Mr V Panicker for the Applicant is to file and serve Notice of Change of Solicitors by 2pm on 27 September 2019;

2. Upon filing in accordance with Order 1, Project Lawyers, in particular Ms M Parrino, are given leave to withdraw their appearance;

3. The Applicant is to pay the First to Third and Fifth Respondents' costs thrown away as a consequence of the adjournment and those costs, unless I otherwise order after hearing submissions from the parties at the conclusion of the substantive matter will be on a solicitor/client basis;

4. I note that the Applicant does not press paragraphs 4A, 4B, 7, 9 and 12 of the Third Further Amended Summons and I strike those paragraphs from the Third Further Amended Summons;

5. The order of this Court made by Moore J on 21 August 2019, that restrained the First and Second Respondents from carrying out any work on the land the subject of these proceedings is dissolved.

6. The Fifth Respondent is released from its undertaking, to be restrained from determining the 2019 modification application, the 2019 development application, the building certificate application and any other such application relating to the development site;

7. The Order restraining the Fourth Respondent from determining any application in relation to 1 to 3 Marmaduke Street and 7 Deane Street, Burwood, New South Wales, is dissolved;

8. The Applicant is, as and from this date, released from its undertaking as to damages;

9. Vacate hearing dates 27 and 30 September 2019;

10. Matter to resume hearing on 1 October 2019 at 9am and continue until completion on 2 and 3 October 2019.

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Decision last updated: 30 September 2019