Pesec v Zivko (No 2)

[2022] ACTSC 270

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Pesec v Zivko (No 2)

Citation:

[2022] ACTSC 270

Hearing Date:

30 September 2022

DecisionDate:

30 September 2022

Before:

Elkaim J

Decision:

(i)     The plaintiff’s application in proceeding filed on 13 September 2022 is dismissed.

(ii)    The plaintiff is to pay the defendants’ costs of the application.

Catchwords:

CIVIL LAW – APPLICATION – Application seeking leave to rely upon expert evidence – where applicant seeks extension of time to file and serve expert evidence – application dismissed

Parties:

Anthony Pesec ( Plaintiff)

Josip Pavao Zivko ( First Defendant)

Frank Crnkovic ( Second Defendant)

Mirko Skrnjug ( Third Defendant)

Rein Heins ( Fourth Defendant)

Noel Edward McCann ( Fifth Defendant)

XO1 Pty Ltd (Sixth Defendant)

Consolidated Builders Limited ( Seventh Defendant)

Representation:

Counsel

R M Higgins ( Plaintiff)

C Prestwich (First and Sixth Defendants)

T Gaffney (Second to Fifth Defendants)

I Ahmed (Seventh Defendant)

Solicitors

Chamberlains ( Plaintiff)

Allens (First and Sixth Defendants)

Ashurst (Second to Fifth Defendants)

Clayton Utz (Seventh Defendant)

File Number:

SC 147 of 2021

Elkaim J:

1. The application before me today was filed by the plaintiff on 13 September 2022. It seeks an order that the plaintiff be given leave to rely upon expert evidence in chief filed and served by 7 October 2022. This date being but one week away would suggest that there would be little difficulty in making the order.

1. The reality however is somewhat different. The order is opposed by all of the defendants who, primarily through the seventh defendant, have highlighted the history of the matter, which renders the apparent simplicity somewhat illusory.

1. The plaintiff’s application is supported by an affidavit of Mr Hugh Smith affirmed on 13 September 2022. The seventh defendant, together with all of the other defendants, rely on an affidavit of Ms Mulroy affirmed on 30 September 2022. Ms Mulroy’s affidavit sets out a relevant history, which I summarise as follows:

(a)On 9 December 2021 Crowe AJ imposed a timetable which obliged the plaintiff to file its expert evidence by 10 June 2022.

(b)On 3 February 2022 the matter was before McWilliam AsJ. Her Honour made further timetable orders and observed that actions of this type (oppression suits) “normally happen a bit faster than this because there is a real issue about the company and its future”. Her Honour did not amend the expert evidence orders that had been made by Crowe AJ.

(c)On 1 July 2022 the matter came before McCallum CJ when a request was made for the expert evidence order to be amended to 7 October 2022. Her Honour was prepared to extend the original order to 9 September 2022. In relation to the request for the October date, which I am told is only by coincidence the same date as sought in the present application, her Honour said “Well, that’s too late. I mean that will be too close to the hearing…I think October is too long”.

(d)The Chief Justice told the plaintiff’s solicitor, Mr Smith, that he needed to get his “expert act together”.

1. McCallum CJ, also on 1 July 2022, listed the matter for final hearing on 6 March 2023 with an estimate of 10 days. Her Honour directed that the parties engage in a mediation prior to 18 November 2022.

1. Consistent with her Honour’s orders the parties agreed on a mediator (the Honourable Ms Patricia Bergin AO SC) and on a mediation date (16 and 17 November 2022).

1. The plaintiff did not file and serve its expert evidence by 9 September 2022, thus leading to the present application.

1. Mr Smith, on behalf of the plaintiff, says he has done his best to secure the expert evidence but has not been able to do so in time. It was pointed out that three separate experts are required (a forensic expert, a remuneration expert and a property valuer) and that there has been a request between experts to view each other’s reports.

1. The plaintiff submitted that without the experts’ reports its case would suffer “significant prejudice”.

1. The defendants pointed out the following: at paragraph 9 of Ms Mulroy’s affidavit there is a table showing the dates when the plaintiff’s solicitors asked the plaintiff to provide instructions for the engagement of an expert. The first date is 16 March 2022. There then follows eight requests before instructions were finally obtained on 6 June 2022. This is against a background of the order in respect of experts having been made by Crowe AJ on 9 September 2021.

1. Further, in relation to one expert wishing to see the report of another expert, Mr Smith in his affidavit, at [20], says that in a meeting with Mr Pont (the forensic expert) on 7 September 2022, Mr Pont said that he would require two weeks after seeing Mr Green’s report (the property valuer) before he could provide his own report. It was submitted that on this timetable, if Mr Pont’s report was going to be served by 7 October 2022, then he must have already seen Mr Green’s report, but Mr Green’s report had not been served.

1. In order to accommodate the possible extension of the service of the plaintiff’s expert reports, the defendants made enquiries both with the currently agreed mediator, and other mediators, to find an alternative mediation date later in the year. Due to the combination of the unavailability of the mediators, the legal representatives and the parties, that exercise proved fruitless.

1. The result is that the mediation would most likely not take place before February 2023, leaving very little time for preparation before the hearing on 6 March 2023. If a hearing was still required following the mediation there would seem to be an inevitability that the hearing date would need to be delayed. Having regard to the history of the matter, that would be an unacceptable result.

1. My initial thought was that the short time to 7 October 2022 should permit the extension, perhaps coupled with stringent costs orders and orders preventing delay of the mediation and the hearing date. However the real period is not between today and 7 October 2022, but rather between 9 September and 7 October 2022.

1. Further it is apparent that the plaintiff, primarily through McWilliam AsJ and then McCallum CJ, has been put on firm notice that 9 September 2022 was the ultimate limit for an extension. Accepting that 7 October 2022 is a date only coincidental with the date suggested before McCallum CJ, it is nevertheless a date that was firmly rejected by the Chief Justice.

1. This is not only an oppression suit, but also a commercial matter, which is supposed to proceed with efficiency and expedition. The limit to the extension of orders was reached before McCallum CJ. I am not prepared to yet again allow an extension. It will be unfortunate if the plaintiff is prejudiced by the lack of the expert reports. However this result will be a product arising from the plaintiff’s own camp, in particular the plaintiff’s failure to provide instructions to his solicitor to engage experts until 6 June 2022, some three days before the then existing deadline.

1. I make the following orders:

(i)The plaintiff’s application in proceeding filed on 13 September 2022 is dismissed.

(ii)The plaintiff is to pay the defendants’ costs of the application.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: