Russo v Buck - [2006] SASC 249

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
RUSSO v BUCK & ORS
[2006] SASC 249
Judgment of The Honourable Chief Justice Doyle
10 August 2006
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT
Application to set aside orders dismissing the plaintiff's action - consideration of the facts of the case in view of rules 75.15 and 84.12 of the Supreme Court Rules which provide for the setting aside of orders where to do so would serve the interests of justice - plaintiff (applicant) failed to attend court or to provide funds and instructions to solicitors - plaintiff's failure to attend at trial was attributale to illness - whether the plaintiff has an arguable case - consideration of the facts of the case - arguable case made out - consideration of the prejudice to be occasioned to the defendants (respondents) if the application was allowed - consideration of the prejudice to the plaintiff if the application was refused - consideration of relevant payments that may be made into court so as to protect the defendants against financial loss - a lump sum payment required to be paid by the plaintiff into court as a condition precedent to the setting aside of the judgment.
Supreme Court Rules 1987 (SA) r 75.14(2), 75.15, 84.12, referred to.
Watson v Anderson (1976) 13 SASR 329, applied.
Rosing v Ben Shemesh [1960] VR 173; Kostakanellis v Allen [1974] VR 596, considered.

RUSSO v BUCK & ORS
[2006] SASC 249
Civil

DOYLE CJ: On 7 June 2006 I ordered that Mr Russo’s action be dismissed. I made that order pursuant to r 75.14(2) of the Supreme Court Rules 1987 (SA). Mr Russo did not appear in person or by counsel when his action was called on for trial that day.
On 21 June 2006 Mr Russo issued a notice for specific directions seeking an order that the judgment be set aside pursuant to r 75.15 or r 84.12 of the Rules.
The application is opposed by the first to fourth defendants in the action.
There is no real dispute about the principles applicable on such an application. There has been a vigorous dispute on some issues of fact, and on whether I should set the order aside.
The submissions proceeded on the basis that I had power to set the order aside under r 84.12 or under r 75.15. Rule 84.12 confers a discretion exercisable “if the justice of the case so requires”. Rule 75.15 confers an unfettered discretion, but it is a discretion that also must be exercised in accordance with the interests of justice.
The case is a difficult one, because of the difficulty of deciding whether it is in the interests of justice to set the order aside. It is also a case in which, regrettably, the parties have incurred substantial legal costs without the matter having gone to trial on the merits.
The origin of the proceedings
On about 15 March 2001 at the premises of Private Funds Management Pty Ltd (“PFM”), which appears to have acted as a mortgage broker, Mr Russo signed documents the effect of which was that he borrowed $80,000 from Mr and Mrs Buck (“the Bucks”), the first and second defendants. The borrowing was for a term of six months. It was secured by a second mortgage over Mr Russo’s house property at Aldinga. Interest only was payable during the term of the advance.
Mr Russo claims that before he signed the documents Ms Conn, the fourth defendant, an employee of PFM, (the third defendant) told him that he (Mr Russo) was correct in his understanding that Mr Buttigieg (the fifth defendant) was the borrower, and that Mr Russo was providing security in support of that borrowing on the basis that the borrowing was limited to an amount of $80,000 for a maximum term of six months. Mr Russo claims that he signed the documents having been given that assurance by Ms Conn. He says that he did not read the documents, other than to note that they referred to the sum of $80,000 and to the term of six months.
The advance of $80,000 was not repaid on the due date of 16 September 2001. The first to fourth defendants say that Mr Russo, through Mr Buttigieg, sought an extension of the advance. Mr Russo denies that he authorised Mr Buttigieg to do that, if he did it.
The first to fourth defendants say that in about early June 2002 the Bucks agreed to increase the loan to $150,000, by a further advance, and to extend the period of the loan to 16 September 2002. They have produced certain documents, apparently signed by Mr Russo, requesting and agreeing to that arrangement. Mr Russo denies having made the request, denies having received the money, and says that the signatures against his name are forged.
When the period of the loan expired on 16 September 2002, repayment was not made.
On a number of occasions from February 2003 the Bucks’ solicitors served notices of default on Mr Russo, or claim to have served such notices on him. The defendants say that there had been earlier letters to Mr Russo relating to the loans, or repayment of them.
In July 2003 the Bucks issued possession proceedings against Mr Russo. The proceedings were served on Mr Russo. On 8 October 2003 the Court made an order that Mr Russo give up possession of the Aldinga property to the Bucks. The order was made in Mr Russo’s absence, he having failed to attend at court.
The first to fourth defendants say that Mr Russo was served with the order.
On 25 February 2004 the Sheriff took possession of the property and delivered possession to Ms Conn. Possession was restored to Mr Russo a day or two later, after a payment was made on account of the loan monies. Mr Russo says that this payment was made by Mr Buttigieg.
Mr Russo’s case is that all he ever agreed to was to provide security for the initial advance, and for a period of six months. The advance was to and at the request of Mr Buttigieg. All along he thought that Mr Buttigieg was making payments as required. When he found out that this was not so, Mr Buttigieg told him that he would fix things up.
There were further defaults after possession of the Aldinga property was restored to Mr Russo. In June 2004 the Bucks issued further possession proceedings. The outcome of those proceedings awaits the outcome of the present proceedings.
The proceedings
In September 2004 Mr Russo issued these proceedings. The Bucks, the lenders, are the first and second defendants. PFM and Ms Conn are the third and fourth defendants. Mr Buttigieg is the fifth defendant. He is bankrupt and has not taken any part in the proceedings.
Mr Russo’s Statement of Claim pleads the events more or less as outlined above. It does so in complete disregard of the Rules requiring that a pleading be as brief as the nature of the case permits, and contain a statement of material facts but not evidence. It then claims a somewhat bewildering range of relief.
In a nutshell Mr Russo says that he signed the loan documents relying on explicit representations by Ms Conn. The effect of the representations is set out above. He claims that the advance of $80,000 has been repaid by repayments of $93,130.09 made by Mr Buttigieg. He claims, on various legal bases, that he is not indebted to the Bucks, that he is entitled to have the second mortgage set aside, that he is entitled to have the purported loan agreement rescinded. He claims damages for stress and anxiety caused to him, and for loss that he has suffered.
The defendants plead, in substance, that Mr Russo borrowed $80,000 for six months, that he sought and was given an extension of the term of the loan, and that he sought and was given a further advance of $70,000 and a further extension of the term of the loan. The defendants deny that Mr Russo was no more than a guarantor of an original advance to Mr Buttigieg. The defendants also rely on the judgment for possession that the Bucks obtained in the possession proceedings, and plead that this means that the claims made by Mr Russo are now barred, or subject to an estoppel.
No reply has been filed dealing with the estoppel claim.
The default judgment
The circumstances in which the default judgment was obtained are relevant to Mr Russo’s application. I will have to outline them.
Because the passage of time is relied upon by the defendants, I begin by noting that the original advance was in March 2001. By mid 2004 Mr Russo knew from various sources of the defaults in making repayment, of the further advance of $70,000, of the documents which he said were forged and that the Bucks claimed that he was liable.
Mr Russo’s action made slow progress after the defence was filed in May 2005. It is unnecessary to go into detail. I am satisfied that to a substantial degree delay and defaults by Mr Russo delayed the proceedings.
In mid October 2005 the action was listed for trial on 6 March 2006, subsequently varied to 8 March 2006.
In January 2006 Mr Russo’s solicitors applied for an order that they cease to act, saying that Mr Russo had not provided funds as required or instructions as required. Mr Russo has subsequently denied that he is at fault. He says he had made an arrangement for funds with his solicitors, from which they departed. In any event, in early February the order was made, and Mr Russo was notified in writing.
When the trial was allocated to me I fixed a directions hearing for 28 February 2006 to ensure that the matter would be ready to proceed.
Mr Russo appeared in person. He then told me that he wanted the trial adjourned because his solicitors had mixed up the dates, and his preferred counsel was not available. However, he said that he would present the case himself if necessary. He had not previously given any indication to the Court that the case might not be able to proceed.
I adjourned the directions hearing to 3 March. On that occasion Mr Russo was represented by counsel, who made an application for adjournment. I was told that the main problem was not funds. Although funds were not yet available to Mr Russo, they would be available in the fairly near future. The problem was getting the case ready. I made what might seem an obvious point, that the need to get the case ready should have been apparent months prior to that, and that Mr Russo had a responsibility to ensure that his solicitors were doing what was necessary. I refused to adjourn the case at that stage.
On 8 March, the trial date, Mr Russo appeared for himself. He again sought an adjournment and blamed his former solicitors for his predicament. Ultimately, after Mr Russo made a payment of $3,000 on account of costs thrown away, and paid into court a little more than $10,000 to cover interest that would accrue over three months, I adjourned the trial to 5 June 2006.
Mr Russo assured me that he would have funds to obtain legal representation, and that he would be ready to proceed on 5 June.
I fixed another directions hearing for Wednesday 31 May, to ensure that the action was ready for trial.
Mr Russo did not attend. His partner, Ms Costanzo, told me that Mr Russo had the flu but would be ready to proceed on 5 June. She told me that he did not have legal representation. There had been no previous indication to the court of any difficulty with the trial proceeding.
On Monday 5 June, the day fixed for the trial, Mr Russo did not attend. Ms Costanzo came to court, and told me that Mr Russo was unwell. She handed me a short report from Dr Hogarth, a general practitioner, stating that Mr Russo was not in a fit mental state to cope with the court proceedings.
I adjourned the matter to Wednesday 7 June. Again Mr Russo was not present, but Ms Costanzo was present. Dr Hogarth was present. In Mr Russo’s absence I took the unusual course of allowing Dr Hogarth to give brief evidence about Mr Russo’s state. He had seen Mr Russo once only, and thought that he was suffering from depression and an anxiety disorder, and was not in a fit mental state to cope with the proceedings.
While I accepted the truth of what Dr Hogarth said, and the genuineness of his opinion, I had no evidence at all from Mr Russo, nor any real explanation of how this had all come about so suddenly, if it had come about suddenly. There was no way of knowing when Mr Russo would be fit to represent himself, were I to grant an adjournment. There was no way of knowing to what extent Mr Russo’s state was attributable to depression, and to what extent it was due to straight forward anxiety about the approach of the proceedings, and his ability to cope.
I had affidavit evidence before me that Mr Buck was in poor health, and that the delay in the resolution of the proceedings was affecting his health adversely. An affidavit had been filed stating that Ms Conn suffered from a condition which was worsened by the anxiety and stress caused to her by the delay in the proceedings.
In the end, for reasons that I explained in brief reasons that I gave that day, I declined to adjourn the proceedings as requested by Ms Costanzo. My reasons refer to other factors that I took into account. Having declined to adjourn the proceedings, I then dismissed Mr Russo’s action.
The application to set the judgment aside
Mr Sallis appeared for Mr Russo. Mr Hoffmann QC appeared with Mr Simpson for the defendants other than Mr Buttigieg.
Mr Russo’s application was made on 21 June 2006. I am prepared to extend the time for the making of that application pursuant to r 75.15.
A number of affidavits were tendered by each side, including affidavits filed at earlier stages of the proceedings. Mr Russo, Ms Costanzo and Dr Kutlaca gave evidence. So did Mr Cook, a friend of Mr Russo, who gave evidence of his willingness to lend him money. I heard the application over two full days.
I outlined earlier the nature of the power conferred on me by r 84.12 and r 75.15. I will not repeat what I said.
The matters that fall for consideration when exercising the discretion conferred by these provisions will differ according to the type of case. The matters to be considered are canvassed in the decision of the Full Court in Watson v Anderson (1976) 13 SASR 329. That decision has been applied many times in this State.
The relevant matters are the reason for the default (Mr Russo’s failure to appear at the time fixed for trial); the reason for any delay in applying to set the judgment aside (not an issue in this case); whether Mr Russo genuinely intends to prosecute his claim; and whether Mr Russo has an arguable case or a claim that has some prospect of success: see Bray CJ at 333-334; Mitchell J at 337-338; Walters J at 341. The approach to be taken is put in similar terms in Rosing v Ben Shemesh [1960] VR 173 at 176 and in Kostakanellis v Allen [1974] VR 596 at 602-606.
In considering the merits of Mr Russo’s claim, I am not required to accept every assertion of fact made by, or on behalf of, Mr Russo. On the other hand, I must not turn the application into a trial of the case on affidavits. It is not for me to decide whether the claim will succeed or is likely to succeed. I must be satisfied that there is a claim to be tried. To put it negatively, I should not set aside the judgment if there is really no triable issue.
The cases refer also to the question of possible prejudice to the opponent, in this case the Bucks and, to a lesser extent, Ms Conn. Having regard to the width of the discretion, I consider that I must take these matters into account. The main matters to consider are the impact on the health of the relevant defendants, the Bucks’ concern that they will expend further monies on costs that they will not be able to recover, and the delay (with loss of interest) in being able to recover their loan, assuming they ultimately succeed. I will return to these issues.
I have set out the history of the matter at some length. The reason for this is that the history provoked a natural scepticism on the part of the defendants about the genuineness of Mr Russo’s wish to pursue his claim, and the genuineness of that claim. These are matters that must be borne in mind, and I will return to them in due course. In general terms they are the history of delay by Mr Russo; his failure to respond to situations in the manner that a prudent litigant would (when his solicitors ceased to act, and when the March trial date was approaching); his unfulfilled claims that he would be ready and able, represented or unrepresented, to prosecute his case; the fact that in March and June there was no hint that Mr Russo would not be ready to proceed until the Court took the initiative by fixing a directions hearing.
The reason for Mr Russo’s failure to appear at trial
Mr Russo’s case is that he failed to appear at trial because he was suffering from a depressive disorder and panic attacks, and was not fit to appear or to conduct his case. The defendants deny this. They submit that Mr Russo failed to appear to avoid having to conduct his case, and that Mr Russo suffered from no more than understandable anxiety over the prospect of the hearing. Even if he was suffering from an anxiety state or depression, the defendants submit that was due to his own failure to ensure that he had legal representation.
Mr Sallis tendered a detailed report from Dr Kutlaca, a psychiatrist. Dr Kutlaca gave evidence before me as well. He had seen Mr Russo on four occasions between 21 June 2006 and 17 July 2006.
Based on the history from Mr Russo, his presentation and symptoms he described, Dr Kutlaca formed the opinion that Mr Russo was suffering from a major depressive order, probably beginning some time earlier than mid May 2006. Mr Russo gave him a history of a number of attendances at hospital emergency departments over the last two years or so, Mr Russo saying that they were related to panic attacks. On that basis Dr Kutlaca said in his report that there was “… support for a co-morbid panic disorder …”. That would have predisposed Mr Russo to the development of a depressive disorder.
Dr Kutlaca said that that aspect of his opinion was subject to seeing relevant medical records.
Dr Kutlaca thought that the medication prescribed by Dr Hogarth (a general practitioner) on 2 June 2006 had worsened Mr Russo’s condition. A different anti-depressant was called for. He prescribed different medication and Mr Russo’s condition improved quite quickly.
Dr Kutlaca said that Mr Russo needed continuing treatment or supervision, but would recover. He said that on 7 June 2006 Mr Russo was not fit to conduct his case. The effect of his evidence was that Mr Russo would have been in an angry and agitated state, were he able to take himself to court, and that the court process would have made him worse, and raised a risk of him behaving inappropriately and harming someone.
I bear in mind the obvious point that a litigant in person is often in an angry and agitated state, and any normal litigant in person is likely to find it difficult to represent himself adequately.
Mr Hoffmann’s cross-examination of Dr Kutlaca and later of Mr Russo, drawing on medical records that were produced on subpoena, establishes that the history of panic attacks was unreliable. The hospital records suggest that the attendances were probably for other reasons, although there are references to shortness of breath. In a number of other respects, some of them relatively minor, the history that Mr Russo gave was not reliable. I am not persuaded that Mr Russo was suffering from anxiety attacks.
Nevertheless, I accept Dr Kutlaca’s primary diagnosis of depression. He adhered to this even when doubt was cast on the suggestion of panic attacks. The primary diagnosis is based on Mr Russo’s presentation and the symptoms he described, other than the panic attacks. The discrepancies in Mr Russo’s history, while reflecting on his reliability, do not remove the basis of Dr Kutlaca’s opinion. Dr Kutlaca is an experienced psychiatrist and was an impressive witness. I am satisfied that he made appropriate allowance for the inevitable stresses associated with Mr Russo having to prepare for the case.

I accept Mr Hoffmann’s submission that Mr Russo’s failure to make a greater effort to secure legal representation before June played a substantial part in the development of his condition. Mr Hoffmann demonstrated that Mr Russo had been able to raise substantial funds from friends and other sources. These could have been used to secure legal representation. But I also accept that Mr Russo had other pressing demands to meet, in particular, repayments on other borrowings. Mr Russo’s explanation for not having legal representation by June is not completely convincing, but nor was the issue explored in complete detail. Mr Russo’s contribution to his condition is not of such a kind that I can put to one side the significance of the conclusion that I have reached.
This does not mean that Mr Russo was quite incapable of coming to court on 7 June. I am inclined to think he could have got there. But in light of Dr Kutlaca’s opinion I accept that Mr Russo probably felt overwhelmed and unable to make the effort. More relevantly, I accept that had he appeared there probably would have been some kind of crisis due to a mix of anger and emotion and the condition of depression. The case would have come to a halt.
The situation is frustrating. But Dr Kutlaca’s opinion remains a relevant factor.
In a sense Mr Hoffmann was right to say that nothing had changed since I declined to adjourn the proceedings on 7 June 2006. But I now have much more information than I had then. I am now prepared to make the finding in Mr Russo’s favour that I was not prepared to make then.
It follows that Mr Russo’s failure to attend at trial and procedural default was attributable to illness. I am also satisfied that had he appeared the case would not have progressed far before he became unfit to continue to conduct it.
The delay in making the application
Having regard to Mr Russo’s state of mind in early June, I am satisfied that the failure to apply more quickly than he did should be excused, to the extent that it needs to be excused under r 75.15.
The merits of Mr Russo’s claim
It is convenient to consider together the question of whether Mr Russo is genuine in his statements that he intends to pursue the claim, and the question whether he has an arguable case.
The history of delays by Mr Russo, and of unfulfilled assertions, makes the defendants’ scepticism understandable. I can understand the defendants thinking that Mr Russo is trying to defer or avoid having to face up to the Bucks’ claim for repayment. His failure to act on the warnings that I gave him in March is regrettable. Nevertheless, I accept that Mr Russo genuinely intends to pursue his case. He has failed on a number of occasions to do what he should do to prosecute his claim, but I am satisfied that he genuinely intends to do so.
In considering whether he has an arguable case I pay particular attention to the need to avoid turning the application into a summary trial on affidavits.
Not surprisingly Mr Hoffmann submitted that Mr Russo’s claim could not succeed. Mr Russo’s claim that he did not read the documents that he signed on 15 March 2001 is surprising. Mr Russo has been involved in a number of businesses, and should have some familiarity with documents usually associated with the borrowing of money. One would think that he would have looked through the documents in question, and would have realised that on their face the transaction was more than a guarantee. However, his claim for the contrary cannot be dismissed out of hand. The courts have fairly frequent experience of litigants who sign documents with barely a glance at them.
Mr Russo’s claim that the documents supporting the second advance bear forged signatures raises serious issues. He has made the claim consistently and on oath for some time. The defendants hold an expert report, tendered before me, asserting that the questioned signatures are genuine. Mr Russo has not produced answering evidence. But Mr Russo does not have to produce that evidence at this stage. I cannot dispose of his claim by reference to affidavit evidence alone. I can note that the claim faces a significant obstacle, but can take it no further than that. As Mr Russo’s claim is not incredible, and cannot be dismissed on the evidence before me, it stands as a claim that can be resolved only at trial.
There is no reason to doubt that Mr Buttigieg has been closely involved in the transaction all the way through. That provides a possible basis for some of Mr Russo’s claims about what has happened.
Mr Russo’s claims that he was unaware of the defaults for much of the time, also faces some difficulties, having regard to correspondence which Ms Conn says she sent to him. But that also is something that I cannot decide now. Mr Russo’s failure to respond to a notice to admit, served in these proceedings by the defendants, is a further significant obstacle to his claim. He is deemed to have admitted the authenticity of documents including the documents he challenges. But the Court might yet exempt him from the consequences of his failure to respond to the notice to admit. The default judgment against him in the possession proceedings is a further significant obstacle, but again is not insuperable.
Mr Russo’s procedural defaults and delays are capable of reflecting on his credit, but whether they do so and with what effect is also an issue that can only be resolved at trial.
Mr Russo’s claim is not bound to fail. The prospects of success are not so faint that one can say that there is no reason to set aside the judgment.
Prejudice
If I refuse Mr Russo’s application it seems that the Aldinga property will be sold. Mr Russo will be liable for a debt that he says was never his debt and (in part) on documents which he says bear forged signatures. There is a risk that he will be bankrupted. Refusing the application will give rise to substantial prejudice to him, but in saying that I have to bear in mind that he might be liable after all.
Setting aside the judgment will cause prejudice to the defendants.
I accept that the revival of the case will cause anxiety to the Bucks, and that Mr Buck’s health might suffer. I accept that Ms Conn will experience stress and anxiety, and that her health might suffer. The case should have been over by now.
The Bucks rely on their investments as a source of income. The fact that their capital is at risk (the money advanced) is a source of anxiety. The loss of income by way of interest affects them adversely, but it was not argued that they will suffer hardship because of this.
The defendants will incur further costs that might not be recoverable, if the judgment is set aside. The same applies to the further interest that will accrue until the court decides whether or not the Bucks can enforce the claimed debt. There is a dispute about the value of the Aldinga property, and about Mr Russo’s overall financial position. However, on the information before me I am satisfied that there is a risk that if the defendants are successful, they will be unable to recover the whole of the debt, interest and costs.
Some of the potential prejudice to the defendants can be met by conditions imposed on Mr Russo.
If the application is granted it would ordinarily be conditional upon Mr Russo paying to the defendants their costs thrown away as a result of the case not proceeding on 7 June. To avoid further costs and delay I would be prepared to fix a lump sum to be paid more or less forthwith, the defendants being at liberty to tax the costs thrown away should they wish to do so at a later stage.
Second, the Bucks should be protected against the risk of loss of the interest that will accrue between 7 June and the anticipated date of trial, if judgment is set aside. If an adjournment had been granted on that day, one would expect a condition to this effect to be imposed. It should be possible to arrive at a lump sum amount to be paid into court, to abide the outcome of the action, such payment to be made promptly and as a condition of the judgment being set aside.
Third, it is not disputed that when the first advance was made $32,587.50 from the advance was used to satisfy claimants against Mr Russo who had caveats registered on his title. To that extent Mr Russo benefited from the advance. It is true that this enabled the Bucks to register their mortgage subject only to an existing mortgage. But the fact remains that Mr Russo received a monetary benefit. It is not easy to see how he could avoid an order for repayment of that amount to the Bucks, even if his action succeeds. It is true that Mr Buttigieg made repayments totalling $93,130.09 between 16 March 2001 and 27 February 2004. But those payments were made on account of interest only, or substantially on account of interest. Moreover, on the evidence before me they were made by Mr Buttigieg. In principle a further condition of the setting aside of the judgment should be the payment into court of the amount of the benefit that Mr Russo received. That money should be held to abide the outcome of the action.
I realise that the imposition of such conditions would mean that satisfying them would absorb funds that Mr Russo might need to use to secure legal representation. He might have difficulty raising the necessary funds. However, unless those conditions are imposed the prejudice to the defendants that I have identified will not be in any way mitigated, and Mr Buck will get a further opportunity to contest his case without even securing payment of moneys in relation to which his case faces grave difficulties.
Finally, if the judgment is set aside the matter should be fixed for trial as soon as possible, and desirably in September or October this year.
Conclusion
I have dealt with the matters ordinarily considered on such applications. I remind myself that the ultimate consideration is the interests of justice.
I bear in mind that if I grant the application Mr Russo will have secured two deferments of a trial date that was fixed well in advance, that he will have caused significant delay in the resolution of the claim, and that the grant of the application will inflict additional costs on the defendants and will cause them further anxiety. The Court is required to administer justice, but a point must come at which fairness and justice require the Court to say that Mr Russo has had sufficient opportunity to present his case, and that his procedural default cannot be excused.
I must take into account the conclusions favourable to Mr Russo that I have reached on the matters ordinarily considered. It is a significant thing to deny Mr Russo the ability to contest a triable claim, with significant financial consequences for him, on the basis of a default in the circumstances in which it occurred.
I have reached the preliminary conclusion that if the prejudice to the defendants is mitigated by the imposition of the three conditions referred to above, the interests of justice would support me setting aside the judgment. The setting aside of the judgment would be subject to Mr Russo satisfying the conditions. A relatively short time (no more than a few weeks) should be allowed for this so that the parties can prepare for a trial in the relatively near future, if the conditions are satisfied.
As part of those preparations Mr Russo’s advisers will have to consider what they propose to do about the judgment in the possession proceedings and the notice to admit in these proceedings.
In the interests of expedition I propose providing these reasons to the parties by letter, with a view to listing the matter as soon as possible to fix the amount of the payments required by way of condition and the period within which it is to be paid, and to fix a trial date.