Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 4)

[2019] NSWLEC 144

Land and Environment Court

New South Wales

Medium Neutral Citation:	Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 4) [2019] NSWLEC 144
Hearing dates:	01 October 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Jurisdiction:	Class 4
Before:	Duggan J
Decision:	See paragraphs 11 to 13
Catchwords:	ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers – discretionary – civil procedure - adjournment – applicant change of solicitors and counsel – dictates of justice – interlocutory relief – best endeavours of applicant – motion granted
Cases Cited:	Civil Procedure Act 2005 (NSW)
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: I Roberts SC (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. At 9am this morning, Mr Roberts of senior counsel, who now appears for the Applicant on the Notice of Motion, moved on a motion to adjourn the proceedings to a date not before 21 October 2019 together with an order that the Applicant pay the costs thrown away arising from the adjournment.  The motion was to be heard instanter.

2. Mr Leggat SC for the First to Third Respondent, and Mr White, counsel for the Fifth Respondent opposed the making of the order sought on the Notice of Motion and encouraged me to remain of the opinion that I expressed in the judgment that I delivered on the last Notice of Motion for vacation of the hearing dates the reasons for which were delivered on 27 September 2019.

3. In support of the Notice of Motion Mr Roberts reads the affidavit of Venothan Steven Panicker sworn 30 September 2019 which supplements the affidavit of Mr Panicker that was provided to me on the last occasion sworn 27 September 2019.  I am encouraged by Mr Leggat to find that the Applicant is merely seeking to cavil with or re‑hear the application that was made before me on the 27th which was disposed of on that day and that Mr Panicker's further affidavit takes the matter no further. 

4. I reject the submission of Mr Leggat.  Mr Panicker's affidavit makes it plain that he has during the course of the days that were made available to him used his best endeavours and the resources of his firm to attempt, at least, to have the matter in a position where it was able to proceed today.  The Applicant has obtained material from the Court file. Now that Mr Panicker has obtained copies and has sought to familiarise himself with them, he is now in a position to indicate that he does not have sufficient material, (including but not limited to the material that is not before the Court but comprised documents produced pursuant to subpoena and Notices to Produce) which are necessary for the Applicant to cross‑examine the remaining witnesses in the proceedings.

5. Further, Mr Panicker has undertaken further inquiries of new senior and junior counsel and in that regard, he has contacted four sets of barrister's chambers requesting the availability of any senior counsel at those chambers.  He was unable to retain counsel to appear at the hearing today, however he was able to obtain Mr Roberts' services to argue the motion, but Mr Roberts is not available to proceed to conduct the hearing.  Further, Mr Panicker's affidavit sets out in some considerable detail the breakdown of the relationship between the Applicant and its former solicitors.  That particularisation makes it plain to me that the relationship between not only the solicitors but also senior and junior counsel was breaking down over a period of time and that the actions taken by Mr Bechara, the representative of the Applicant, were not taken without warning or consideration when the retainer of the legal team in its entirety was concluded on 27 September 2019.  In those circumstances, it appears to me that the Applicant is not in a position, despite Mr Panicker's best endeavours, to proceed to hearing today.

6. It is my view, that it is appropriate and preferable in the circumstances of the case that the Applicant is represented by legal representation at the hearing of this matter.  If I was to proceed to hearing today, Mr Bechara, being the representative of the Applicant, would have no solicitor nor counsel to assist him in the presentation of his case.  Whilst it is disappointing that the matter is sought to be adjourned this late in the proceedings, particularly in circumstances where the hearing dates were initially allocated on an urgent basis, having regard to the claims raised by the Applicant, and that such listing does, in effect, give the Applicant priority over other litigants in proceedings, and that by seeking to adjourn the proceedings now they too seek to obtain some preferential dates that would not otherwise be available to them, and would be available to other litigants.  The disadvantage of that general listing availability, in my opinion, is outweighed by the disadvantage to the Applicant of forcing the proceedings on today.

7. I accept that the First to Third Respondents in particular suffer prejudice as a consequence of the proceedings not being able to be concluded in time.  That prejudice is not only financial but is reputational as well, as submitted by Mr Leggat.  However, that prejudice remains whilst ever these proceedings are on foot, and until such time as a decision is made, if such decision is in their favour.  The delay of the final hearing of this matter for a further three weeks whilst it continues the prejudice is not in my opinion so overwhelming as to discount the prejudice that would flow to the Applicant from the requirement to have it continue today on a hearing where they are unrepresented.  In my last decision I made it plain that this was not an opportunity (and that adjournment was not given) to permit the Applicant to either recast its case or to adduce further evidence.  I remain of that view.  No application before me is made to amend, nor is any application made to adduce further evidence.  It is the position of this Court that the evidence that has proceeded to date, and the evidence that has been filed is the evidence that is in these proceedings.

8. Any application that is made in the future, if one is, in relation to the further amendment of the application or the adducing of further evidence will not be looked at kindly in light of the history of this matter and the observations I have now made twice in relation to the circumstances surrounding the vacation of these hearing dates. 

9. I note Mr Roberts' instructions are that in the event that I vacate the hearing dates today and adjourn the matter to a date not before 21 October, his client will not oppose the making of an order requiring that it pays the First to Third and Fifth respondents costs on a solicitor/client basis for the adjournment today and the adjournment that I granted on 27 September, and I propose those to be the terms of grant any adjournment in this case. 

10. I also note that the injunctions and the undertakings that were given before his Honour Moore J, have now been released or dissolved and that whilst the Applicant is still precluded from taking further steps to continue with the development that it no longer has the risk of those undertakings and the injunctions hanging over its head and that that plays a minor part in my consideration in relation to this application.

11. For those reasons, in accordance with the Notice of Motion filed this morning and pursuant to s 66 of the Civil Procedure Act 2005 (NSW) I order that the hearing of these proceedings be vacated and that the matter be re‑listed for continuation of the hearing commencing on 30 October 2019. I list the matter for three days to ensure that the matter is completed on that day. I therefore list the matter from 30 October to 1 November 2019. I order that the Applicant pay the Respondents costs thrown away as a consequence of this adjournment and the adjournment made on 27 September 2019 on a solicitor/client basis.

12. I note that if any application is to be made to amend the pleadings or to file further evidence, (and I make this observation not inviting the Applicant to do so), any such application should be made before the hearing on the next occasion and if that application is made at the hearing on the next occasion will be less likely to be entertained favourably than if they are made prior to.

13. I, therefore, adjourn the matter to 30 October 2019 for further hearing.

**********

Decision last updated: 01 October 2019