Reliance Financial Services NSW Pty Ltd v Francesco Criniti & ors

[2008] NSWSC 1397

CITATION:	Reliance Financial Services NSW Pty Ltd v Francesco Criniti & ors [2008] NSWSC 1397
HEARING DATE(S):	12 December 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	12 December 2008
DECISION:	Hearing date adjourned.
CATCHWORDS:	PROCEDURE – application to adjourn hearing date – where application arises from counsel seeking adjournment mistaking original hearing date – whether unavailability of preferred counsel sufficient reason to adjourn – relevant considerations
CATEGORY:	Procedural and other rulings
CASES CITED:	Carson v Legal Services Commissioner (No 3) [1997] NSWCA 60 Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2001] NSWCA 235
PARTIES:	Reliance Financial Services NSW Pty Ltd (plaintiff/applicant) Francesco Criniti (first defendant/respondent) Caterina Criniti (second defendant/respondent) Josephine Joan Romano (third defendant/respondent)
FILE NUMBER(S):	SC 1832/05
COUNSEL:	Mr D A Allen (plaintiff/applicant) Mr R J Horsley (defendants/respondents)
SOLICITORS:	Proctor & Associates (plaintiff/applicant) Agostino & Co (defendants/respondents)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday, 12 December 2008

1832/05 Reliance Financial Services NSW Pty Ltd v Francesco Criniti & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: On 11 November 2008, I gave judgment in an application in proceedings 2445/08, declaring that the present plaintiff Reliance Financial Services NSW Pty Ltd (the applicant in those proceedings), had been appointed as trustee of Reliance Discretionary Trust in place of the former plaintiff Reliance Financial Services Pty Ltd (the first respondent on the application). I declared that certain loans the subject of various proceedings, including the present proceeding – were assets of the Reliance Discretionary Trust, and made directions that the present proceedings, amongst others, be listed before me on 4 November 2008, and that Reliance NSW notify the defendants in the various proceedings of that listing and of the outcome of the application.

2 The intention was that, on 24 November 2008, an order substituting the present plaintiff for the previous plaintiff be made. When the matter came before me on 24 November, that order was made without opposition. However, there was some dispute as to the future conduct of the matter. Several of the matters that had been listed before me on 24 November, pursuant to the directions of 11 November, were adjourned to 8 December, before me. In the present matter, the plaintiff sought that the matter be listed before the Registrar on 8 December for allocation of a hearing date, whereas the defendants sought that it be referred to the Associate Judge’s list on 2 December for hearing of its motion for summary dismissal or striking out of the proceedings. As I thought it unlikely that the matter would be heard in the Associate Judge’s list – given the issues involved, the likely time to be taken and the probable congestion of that list at this time of the year – I instead adjourned the Motion before me next Monday, 15 December 2008, with a view to hearing it that day.

3 However, the plaintiff’s counsel mistakenly thought that the motion had been adjourned for hearing on 8 December together with the other matters that had been adjourned to that date. It is plain from the correspondence, on the one hand that those representing the defendants had correctly identified that the matter was listed on 15 December and informed the plaintiff’s solicitor of as much by letter dated 25 November, but on the other hand that the plaintiff proceeded to prepare the matter on the misapprehension that the motion was listed for hearing on 8 December, as is manifest from correspondence emanating from their solicitor on 28 November and 5 December 2008. Their misapprehension was corrected by a letter from the defendants’ solicitors dated 8 December, but only despatched at 10.02am on 9 December 2008.

4 The plaintiff seeks that the hearing of the Notice of Motion on 15 December be vacated and a new date fixed convenient to the Court and counsel for both parties. The basis of the application is that counsel of the plaintiff’s choice is not available on 15 December, and it was attributable to a mistake on their part that their unavailability was not noted at the time when the matter was set down. The plaintiff offered, in advance of bringing this Motion, to pay the costs thrown away by the adjournment.

5 The defendants submit that only in exceptional cases should the unexpected loss of counsel of choice lead the Court to consider vacating a hearing date over the opposition of the opposing party. While dicta of Mason P (with whom Meagher and Stein JJA agreed) in Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2001] NSWCA 235 are to that effect, questions of adjournment are matters of practice and procedure which largely fall within the province of the discretion of a judge managing or hearing the case. I do not think the Court of Appeal is to be taken to have laid down a rule of law that where counsel’s convenience is involved, a hearing date should be vacated only in very exceptional circumstances; it can only be a factor to be taken into account in the exercise of a general discretion. At least one decision of the Court of appeal points in the opposite direction [Carson v Legal Services Commissioner (No 3) [1997] NSWCA 60].

6 I agree, as Mr Horsley as submitted, that the motion for summary disposal is one which it should be relatively easy for other counsel to master, in the time available between now and Monday. On the other hand, it is an important aspect of the administration of justice that parties are able to have conducted by lawyers of their choice and in whom they have confidence. This is particularly so in respect of applications which may be dispositive of the proceedings. In this case, Reliance NSW wishes Mr Ashhurst SC – and perhaps more particularly Mr Allen, who has an extensive background in and familiarity with the litigation – to appear and conduct an application which may be dispositive on a final basis of the proceedings. Were there some aspect of real prejudice to the defendants, not curable by costs, that may have weighed strongly against granting an adjournment; but Mr Horsley has very fairly and properly not pointed to any real prejudice which would be occasioned to the defendants, other than that inevitable prejudice that arises from the disappointment of expectations and arrangements made in connection with an apparent hearing date. Even that is reduced in the circumstances of an interlocutory application, only recently fixed, albeit it one potentially finally dispositive, as distinct from a trial for which days or weeks may have been set aside many months in advance.

7 I order that the fixture of the defendants’ notice of motion for hearing on 15 December 2008 be vacated.

8 I order that the plaintiff pay the defendants’ costs occasioned by the vacation of the hearing date.

9 I fix the motion for hearing before me on Tuesday, 17 February 2009 at 10am.

10 The costs order I have made concerns only the costs “thrown away”. I do not intend to make any order as to costs of the motion today itself, on the basis that while the plaintiff seeks an indulgence, there being no prejudice to the defendants, the application ought to have been consented to when an offer to pay the costs thrown away was made. Accordingly, there will be no order as to the costs of the motion filed today, to the intent that each party bear its own costs.

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