Ryan v Breen

[2014] NSWSC 1740

Supreme Court

New South Wales

Medium Neutral Citation:	Ryan v Breen [2014] NSWSC 1740
Hearing dates:	4 December 2014
Date of orders:	04 December 2014
Decision date:	04 December 2014
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	Notice of Motion to vacate hearing dismissed with costs.
Catchwords:	PROCEDURE – adjournment – where plaintiff applies to vacate imminent hearing – whether sufficient explanation for state of preparedness – where adjournment will ocassion prejudice to defendant – application refused
Category:	Procedural and other rulings
Parties:	Elfreda Ryan (plaintiff) Julianne Breen (defendant)
Representation:	Counsel: P Doyle Gray (plaintiff) G B Evans (defendant) Solicitors: Malcolm Carr (plaintiff) B Hayward & Co (defendant)
File Number(s):	2013/286362

Judgment (ex tempore)

1. HIS HONOUR: These proceedings are fixed for hearing for three days commencing next Tuesday 9 December 2014. By her statement of claim filed on 23 September 2013 the plaintiff, who is the 92 year old mother of the defendant, her 65 year old daughter, essentially seeks to recover funds which, she says, were appropriated by the defendant to her own use from the proceeds of sale of the plaintiff’s home.

2. A defence was filed on 22 November 2013, the substance of which is to assert that the appropriations were made upon the instructions and with the consent of the plaintiff. The only affidavit evidence so far served on behalf of the plaintiff is her affidavit of 27 January 2014. About six affidavits, all of them sworn in or about May this year, have been served on behalf of the defendant. They were served in or about May.

3. A mediation was conducted on 1 July 2014 at which the matter did not settle. On 8 July 2014, the matter was listed before the Registrar for directions. Mr P Doyle Gray, who currently appears for the plaintiff, appeared for the plaintiff; and Mr G B Evans, who currently appears for the defendant, appeared for the defendant. The record of proceedings records “Mediation unsuccessful. Evidence finished. Return of subpoena 30 July 2014. Brereton J 9-11/12/14. Usual order for hearing.”

4. According to the affidavit of Mr Carr sworn on 3 December 2014 in support of the current application, and it was not in dispute for present purposes, on that occasion Mr Doyle Gray for the plaintiffs informed the Registrar that there were a number of matters that needed attention before the matter was ready for trial, but the defendant pressed for an allocation of a hearing date. In any event, the date allocated was five months away.

5. By notice of motion filed in Court today, the plaintiff seeks an order vacating the hearing date. The motion also seeks - in those circumstances, somewhat ironically - an order that the proceedings be expedited and directions to ready it for early trial. Of course, an early trial can be had, next Tuesday.

6. In substance, two reasons are advanced for the vacation of the hearing. The first is put by Mr Carr in his affidavit in the following terms:

First, since the mediation, the plaintiff has had tremendous difficulty in making proper arrangements to secure my costs and disbursements. My costs and disbursements already incurred had not been fully paid, and inadequate steps were taken to secure my future costs and disbursements. I understand my instructions from time to time to be to defer attending to the matters the subject of Mr Doyle Gray’s advice pending the plaintiff making appropriate financial arrangements; these involved restructuring her limited finances. With the benefit of hindsight, I am now of the opinion that restructuring her limited finances overwhelmed the plaintiff. More recently, I encouraged the plaintiff to rely upon her son to help her with these arrangements. The plaintiff only provided adequate security for my costs and disbursements on 27 November 2014.

1. I shall return to that. The second ground advanced was the documents produced under subpoena directed to the ANZ Bank are said to have raised unforeseen issues. As to that, the relevant subpoena was apparently issued on 22 September 2014, and was returnable on 22 October 2014. Presumably the explanation for its consequences only becoming apparent very recently is the absence of security for Mr Carr’s costs, so that presumably he did not bother inspecting the documents between 22 October and 27 November. It might be noted that, as I have recorded, the registrar at the call-over appointed 30 July for the return of subpoenas.

2. It seems to me that the recent emergence of an issue concerning the ANZ Bank is, unless justified by resort to the security for costs question that I have mentioned, not something that would justify the grant of an adjournment. Similarly, it has been suggested that an affidavit might be obtained from the plaintiff’s former solicitor, Mr McBride, who appears to be a material witness in respect to one of the impugned payments. The materiality of Mr McBride as a witness must have been manifest from the time when the proceedings were commenced, and certainly from the time in late 2013 when the defendant requested that the plaintiff waive privilege in respect of Mr McBride, so that the defendant could interview and obtain a statement from him, which request was refused.

3. Accordingly, it seems to me that the matter boils down to whether the state in which the plaintiff’s case presently is can be, if not excused, at least mitigated sufficiently to justify an adjournment by Mr Carr’s difficulties in obtaining security for his and counsel’s costs in the meantime.

4. I have set out above what amounts to the whole of the evidence on this topic. It has to be said that it descends to very little detail, and speaks at a very high level of generality. Indeed, the sentence “I understood my instructions from time to time to be to defer attending to the matters the subject of Mr Gray’s advice ...” is delightfully vague as to whether there were in fact any such instructions given.

5. There is no evidence of what attempts were made to obtain payment or security from the plaintiff. There is no evidence as to what steps were actually ultimately accepted to be satisfactory in that respect. There is no evidence as to what type of “restructuring” of the plaintiff’s finances was required. If the evidence had showed that reasonably diligent attempts had been made by the plaintiff’s solicitors and the plaintiff to raise funds or provide security, and that those steps had, despite best efforts, only recently come to fruition, and if the evidence also showed that some attempt had been made to inform the defendant of the difficulties being encountered and that the hearing date was in some jeopardy, the position might have been different; but as the evidence presently stands, it seems to me that it is entirely insufficient to demonstrate that the consequences of the plaintiff not having addressed the requirements of proving her case or funding it until just before the hearing, should be visited on anyone other than herself.

6. I am acutely conscious that declining the adjournment may have the effect of practically precluding a 92 year old widow from prosecuting a claim to recover the proceeds of transactions which represent probably 50% or more of her estate, and that is a grave step to take, but no graver than to make the allegations that she makes in the statement of claim in the first place.

7. It cannot be overlooked that this is a family dispute between a mother and a daughter, and what is involved in affording justice to one may well visit injustice on the other. There is (albeit limited) medical evidence from the defendant’s doctor that the defendant, who is in ill health with a potentially terminal metastatic cancer, is under a great deal of stress relating to these proceedings, and that any further delay in their resolution will be detrimental to her health.

8. In endeavouring to evaluate which is the least unjust course to take in the present circumstances, I have also considered all of the evidence so far served in the case, to form some appreciation of the relative strengths of the case, and on that basis I take into account what seems to me on the presently available material the prima facie strength of the defendant’s case. That, of course, is not to say that other evidence might not cast a completely different light on it; but as things presently stand, the defendant’s case seems at first glance to be strong.

9. Although, as I have said, I do not overlook the potentially grave consequences to the plaintiff of declining an adjournment, she has initiated the proceedings and has prosecuted them to this point without a hint, prior to today, of a need for further time to have the matter ready. In those circumstances, and in the other circumstances to which I have referred, I consider that to grant an adjournment of the proceedings at this stage would occasion greater overall injustice to the defendant than failing to do so would to the plaintiff.

10. Accordingly, the application to vacate the hearing is refused. The trial date is confirmed. The notice of motion is dismissed with costs.

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Decision last updated: 03 February 2015