Reavill Farm Pty Limited v AR Mortgages Pty Ltd (No 2)

[2020] NSWSC 718

Supreme Court

New South Wales

Medium Neutral Citation:	Reavill Farm Pty Limited v AR Mortgages Pty Ltd (No 2) [2020] NSWSC 718
Hearing dates:	29 May 2020
Date of orders:	29 May 2020
Decision date:	29 May 2020
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1)   By consent, the First Respondent discontinues the Motion filed on 22 May 2020. (2)   The Motion filed by the First Respondent on 17 April 2020 is listed for hearing on 25 June 2020. (3)   The motion filed by the Fifth Respondent on 14 April 2020 is listed for hearing on 25 June 2020. (4)   Direct that First Respondent and the Fifth Respondent serve any evidence on which they wish to rely in support of their Motions by 12 June 2020 at 5.00pm. (5)   The Defendant serve any further evidence in reply by Tuesday 23 June 2020. (6)   Costs are reserved arising from the adjournment of the hearing of today’s Motions.
Catchwords:	CIVIL PROCEDURE — hearings — adjournment — no issue of principle
Category:	Procedural and other rulings
Parties:	Reavill Farm Pty Limited (Plaintiff) AR Mortgages Pty Limited (Defendant) Tucki Hills Pty Ltd (First Respondent) Matthew Champion (Fifth Respondent) Kevin Coccicla and Glenn Weir (Proposed Respondents)
Representation:	Solicitors: Bransgroves Lawyers (Defendant) Clic Law Group (First Respondent) Grahams Solicitors (Proposed Respondents)
File Number(s):	2019/122214
Publication restriction:	None

revised ex tempore Judgment

1. This matter comes before me today by way of three motions.

2. Ms Cooper appears on behalf of the defendant (“AR Mortgages”). Ms O'Donohoe appears on behalf of the first respondent (“Tucki Hills”). Mr Graham appears on behalf of Kevin Coccicla and Glenn Weir (“Coccicla and Weir”), who are proposed new parties.

3. Ms O'Donohoe and Mr Graham have informed me that they have reached agreement on the motions which involve Coccicla and Weir. Accordingly, I note that, by consent, Coccicla and Weir discontinue their motion filed on 22 May 2020. I note the parties have agreed there is to be no order as to costs.

4. Secondly, I note that Tucki Hills is no longer seeking orders 1, 3 and 4 in its motion filed on 17 April 2020. Again, I note that the parties to those proposed orders, being Coccicla and Weir and Tucki Hills have agreed that there be no order as to costs in respect of those three orders.

5. The matter has a long history. It involves a dispute between the plaintiff as the owner of a farm situated at 22 Hazlemount Lane Tuckurimba and AR Mortgages as the mortgagee, as well as other cross respondents.

6. The plaintiff originally commenced proceedings against AR Mortgages. AR Mortgages then cross-claimed against the plaintiff. Further parties to the proceedings, in particular Ms Belinda Nott and Mr Matthew Champion, were joined as respondents by way of cross-claims.

7. There have been orders made by the Court in respect of possession of the property and the defendant is in possession of the property. When the matter came before me on the last occasion, Ms Nott and Mr Champion sought orders in respect of gaining access to the property to remove their personal goods and items. I made orders to allow that to occur. I understand that Ms Nott attended at the property and retrieved the goods she sought. She no longer appears in the proceedings.

8. Mr Champion also attended at the property and retrieved certain goods. However, when the matter was last before the Court, he indicated that he claimed ownership of 15 head of cattle which he said had been seized and, in part, sold by the defendant. I indicated that I would not be making a decision based on his description of the cattle and identification of their names. He would need to adduce sufficient evidence to establish ownership in circumstances in which AR Mortgages disputed his ownership. Orders were made in respect of the exchange of evidence.

9. Subsequent to those orders, Tucki Hills filed a motion on seeking a range of orders relating to other cattle which have again been sold.

10. The former director of Tucki Hills is Mr Champion's father. For reasons which are not clear, Mr Champion became the director of Tucki Hills after the matter was last before the Court and before Tucki Hills filed the motion on 17 April 2020. He purported to file the motion as Tucki Hills in the sense that he was then the director of Tucki Hills.

11. The registrar made orders in respect of the service of evidence in respect of this motion. Tucki Hills has not complied with those orders.

12. On Monday of this week, Mr Champion, in his capacity as director of Tucki Hills sought legal assistance and instructed Ms O'Donohoe, of Clic Law Group, to represent it.

13. Ms O'Donohoe's advice has had some effect because it has resulted in the resolution of another aspect of the motion pursued by Tucki Hills, being the joinder of Weir and Coccicla. That only leaves for determination the balance of Tucki Hills’ motion and what remains of the original orders sought by Mr Champion in his personal capacity, that is, orders relating to the 15 head of cattle.

14. Mr Champion has not appeared today. However, he has been in touch with Ms O'Donohoe who is representing Tucki Hills. Mr Champion knows that the matter is listed today. I do not know why he has not appeared in circumstances in which appearances have been either by AVL or over the phone.

15. Ms Cooper, on behalf of AR Mortgages submits that all of the motions should be dismissed.

16. Mr Champion and Tucki Hills have failed to comply with Court orders in respect of service of evidence. The matter is listed for hearing today.

17. Whilst there is merit in Ms Cooper's submission, I accept that Ms O'Donohoe has only been instructed this week and that she has given advice to Tucki Hills that it needs to retain counsel and finalise its evidence immediately. I accept also that, on her instructions and on her preliminary view of the evidence, there is an arguable basis for the applications.

18. It seems clear that Ms O'Donohoe has just come into the matter and is doing her best to ensure that, if Mr Champion and Tucki Hills wish to pursue these applications, they do so on a proper basis supported by proper evidence and are properly represented.

19. It is also puzzling that Mr Champion is not appearing for the purposes of his application. It is plain from the correspondence, helpfully provided by Ms Cooper, that Mr Champion is intent on pursuing his application and believes there is a proper basis to do so. The only inference I can draw is that he assumed that Ms O'Donohoe would also be representing him in respect of his personal application.

20. The other factor that causes me to grant the adjournment sought by Ms O'Donohoe is that the technology has failed the parties today. When Mr Graham appeared, he could not be heard consistently. I asked him to abandon the AVL and use the phone. Ms O'Donohoe has been heard, but there have been considerable difficulties with the AVL link. Fortunately, the Court is moving towards personal appearances, although I hasten to add that I doubt that this is a matter where personal appearances will be allowed for reasons that there are only a limited number of courts where personal appearances will be allowed over the next month or so.

21. I acknowledge that this leads to another delay in a long ongoing saga. However, based on the submissions made by the parties today, a further delay of one month would not necessarily prejudice AR Mortgages other than in respect of costs.

22. Accordingly, I propose to adjourn the hearing of the motion filed by Tucki Hills on 17 April 2020. That motion will be listed for hearing before me on 25 June 2020. Similarly, the original application made by Mr Champion, or such of it that remains, will be also listed for hearing before me on 25 June 2020.

23. I direct that Tucki Hills and Mr Champion serve any evidence on which they wish to rely in support of their motions by 5pm on Friday 12 June 2020.

24. I direct that AR Mortgages serve any further evidence on which it wishes to rely by Tuesday, 23 June 2020.

25. I reserve the question of costs arising from the adjournment of the motions today.

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Decision last updated: 11 June 2020