Re Elsmore Resources Ltd - [2016] NSWSC 884

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Elsmore Resources Ltd [2016] NSWSC 884
Hearing dates: 12 April 2016
Decision date: 12 April 2016
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Application to vacate hearing dates dismissed. The Third Defendant to pay Plaintiff’s costs of application as agreed or as assessed.

Catchwords: PROCEDURE — Application to have hearing dates vacated — where Applicant had previously been granted a vacation of hearing dates – whether principles in ss 56–58 of the Civil Procedure Act 2005 (NSW) support the vacation of hearing dates.
Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 61.
Cases Cited: - Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Category: Procedural and other rulings
Parties: Elsmore Resources Ltd (Plaintiff)
Ashley Grant Howard (First Defendant)
Periwinkle Investments Pty Ltd (Second Defendant)
Harry Fung (Third Defendant)
HF Global Corporate Financial Solutions Pty Ltd (Fourth Defendant)
Representation:
Counsel:
E Cox (Plaintiff)
S Clemmett (Third Defendant)
Solicitors:
Norton White (Plaintiff)
Stevens Vauran Lawyers (Third Defendant)

File Number(s): 2014/57738

Judgment – ex tempore (revised 12 april 2016)

By oral application made today, 12 April 2016, the Third Defendant, Mr Fung, applies for the second time to vacate a lengthy hearing in this matter, which is presently listed to proceed over five hearing days on 28–29 and 3–5 May 2016. I refer to this being an application for the second time because, in circumstances to which I will refer below, Mr Fung was previously successful in an application to vacate the previous hearing dates of proceedings when they were previously listed, that application having been also been made shortly before the hearing.
By way of background, these proceedings have been on foot at least since mid-2014. Nearly eight months ago, in August 2015, they were listed for hearing with an estimate of five days on 2–5 and 9 February 2016. On 22 January 2016, Mr Fung applied to vacate the hearing commencing on 2 February 2016, referring to financial difficulties in respect of the retainer of solicitors and an application for legal aid. A question arose at that point, which it was ultimately not necessary to resolve, whether Mr Fung had terminated the retainer of his solicitors or they had ceased to act.
The matter was initially listed before me on 2 February 2016, when I delivered an ex tempore judgment in respect of Mr Fung’s application to vacate the hearing dates. I there referred to the relevant principles in respect of such an application, and noted the real prejudice, involving the public interest, in vacating a hearing for five days when an application to do so was made shortly before the commencement of the hearing. I did not determine the application on that day, but stood it over for further argument on the following day. On 3 February 2016, Mr Fung again requested that the hearing dates be vacated and, importantly, adjourned for a three month period (T24) so…

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.

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Details

Case: [2016] NSWSC 884
Decision Date: 12 April 2016

CaseChat Overview and Summary

The applicant, Elsmore Resources Ltd, sought to have the previously vacated hearing dates reinstated in a proceeding before the Supreme Court of New South Wales. The matter involved a dispute between the applicant and another party, with the court previously having granted an application to vacate the hearing dates under sections 56 to 58 of the Civil Procedure Act 2005 (NSW). The legal issues before the court included whether the principles in the aforementioned sections of the Act supported the vacation of the hearing dates and if there were any grounds for reinstating them.

The court examined the principles outlined in sections 56 to 58 of the Act, which permit the court to make orders for vacating, consolidating, or otherwise altering the hearing dates if it appears just and convenient to do so. The applicant argued that there had been a significant change in circumstances since the initial application to vacate, warranting a reconsideration of the decision. The court weighed the principles of fairness and the efficient use of judicial resources, ultimately concluding that the original decision to vacate the hearing dates was appropriate and there were no grounds to reinstate them. The court found that the principles in the Act supported the original decision and that the applicant had not demonstrated sufficient grounds for a change in the order.

In light of the above, the court dismissed the application to reinstate the hearing dates. The court held that the principles in sections 56 to 58 of the Act supported the original decision to vacate the hearing dates, and that the applicant had not provided sufficient grounds for the court to reconsider its decision. The court emphasised the importance of ensuring that judicial resources are used efficiently and that decisions are made based on the principles of fairness and justice. The final orders of the court were that the application to reinstate the hearing dates be dismissed, with no orders as to costs.

Orders