Sales Pond Pty Ltd v Telegate Pty Ltd - [2020] NSWSC 1579

Supreme Court

New South Wales

Medium Neutral Citation: Sales Pond Pty Ltd v Telegate Pty Ltd [2020] NSWSC 1579
Hearing dates: 14 November 2019
Date of orders: 10 November 2020
Decision date: 10 November 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following orders:
(1) application for an extension of time is refused; and
(2) the applicant to pay the respondent’s costs of these proceedings as agreed or in default as assessed.

Catchwords:
APPEAL – appeal from Local Court – interlocutory decision – whether error in the exercise of discretion by refusing an adjournment application – whether error in failure to extend procedure fairness – adequacy of reasons – delay – prejudice – general principles – appeal brought out of time – extension of time refused – costs

Legislation Cited:
Administrative Appeals Tribunal Act 1975 Act (NSW)
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Ackerman v Morgan [2019] NSWSC 1250
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Anthony v Chris Savage Pty Ltd [2003] NSWSC 698
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd (Unreported, Supreme Court of Victoria, Full Court, 8 April 1988)
Cohen v McWilliam (1995) 38 NSWLR 476
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Dick v Piller [1943] 1 KB 497
Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309
EG & H Nominees Pty Ltd v General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 460
Frugtniet v State Bank of New South Wales [1999] NSWCA 458
Gallo v Dawson (1990) 64 ALJR 458
Guinta v Commonwealth Bank of Australia [2008] NSWSC 222
Guinta v Commonwealth Bank of Australia [2008] NSWSC 222
Hamod v State of New South Wales [2011] NSWCA 375
Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32
House v The King (1936) 55 CLR 499
Jingalong Pty Ltd v Todd [2014] NSWCA 330
In the Will of Gilbert (1946) 46 SR (NSW) 318
Jackamarra v Krakouer (1998) 195 CLR 516
Jeray v Blue Mountains City Council (No 2) (2010) 180 LGERA 1; [2010] NSWCA 367
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220
Nanschild v Pratt [2011] NSWCA 85
Nominal Defendant v Clancy [2007] NSWCA 349
Norfeld Pty Ltd v Amanda Lee Jones [2014] NSWCA 408
Personnel Concepts WA Pty Ltd v Adam & Ors, t/as Marsdens Law Group [2019] NSWSC 301
Pettitt v Dunkley [1971] 1 NSWLR 376
Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto [2019] NSWSC 1454
Priddle v Fisher & Sons [1968] 1 WLR 1478
Regal Life Insurance Ltd v Pacific Financial Resources Pty Ltd (Unreported, Supreme Court of Victoria, Batt J, 16 November 1994)
Rodi v Gelonesi [2012] NSWCA 424
Sackville-West v A-G (1910) 128 LT 265
Sali v SPC Ltd (1993) 116 ALR 625
Scott v Handley [1999] FCA 404
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Spencer v NSW Minister for Climate Change, Environment and Water [2010] NSWCA 75
Squire v Rogers (1979) 27 ALR 330
Thornberry v The Queen (1995) 69 ALJR 777
Tomko v Palasty (No 2) [2007] NSWCA 369
Walker v Walker [1967] 1 All ER 412
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Watson v Watson [1968] 2 NSWR 647; (1968) 70 SR (NSW) 203
White v Grogan [1972] 2 NSWLR 347
Zobel v Croudace (1899) 16 WN (NSW) 32

Category: Principal judgment
Parties: Sales Pond Pty Ltd (Applicant)
Telegate Pty Ltd (First Respondent)
Local Court of New South Wales (Second Respondent)
Representation:
Counsel:
D C Eardley, with C Dobbs (Applicant)
S Jeliba (First Respondent)
Solicitors:
Gardner Ekes Lawyers (Applicant)
Mills Oakley Lawyers (First Respondent)

File Number(s): 2019/214360
Decision under appeal

Court or tribunal:

The Local Court

Jurisdiction:

Civil

Date of Decision:

7 and 13 February 2019

Before:

Magistrate Atkinson

File Number(s):

2017/379880

Judgment

INTRODUCTION

HIS HONOUR: By way of a summons seeking leave to appeal filed 10 July 2019 (“the summons”), Sales Pond Pty Ltd (“the applicant”) sought leave to appeal from two decisions of Atkinson LCM, namely:

the interlocutory decision made on 7 February 2019 (“the interlocutory decision”), dismissing the applicant’s notice of motion filed 6 February 2019. By that motion, the applicant, the defendant in the Court below, sought to vacate the final hearing of the proceedings below; and

the final decision made on 13 February 2019 (“the substantive decision”), following the hearing of the substantive proceedings on 7 February 2019 (immediately following the hearing of the applicant’s motion). By that decision, judgment was entered in favour of the Telegate Pty Ltd (“the respondent”), the plaintiff in the Court below.

Prior to turning to the details of the appeal, it is useful to set out the relevant parties and procedural background to the appeal.

RELEVANT PARTIES

The applicant was a company established in 2011. The sole director at that time was Mr Bora Kender. The applicant continued to be managed by Mr Kender up until his disqualification by the Australian Securities and Investment Commission (“ASIC”), pursuant to s 206F of the Corporations Act 2001 (Cth). I will return to the background to the disqualification under the next heading.
The respondent was a company involved in the supply of internet and telephone systems to businesses.

PROCEDURAL BACKGROUND

The Claim before the Court Below

On 15 December 2017, the respondent filed a statement of claim in the Local Court of New South Wales against the applicant (“the Local Court proceedings”). The respondent sought damages in the sum of $56,354.48, plus interest and costs for the purported rendering of sale and goods and services. The purported services included the provision of telecommunication goods and services to the applicant.
On 26 February 2018, the applicant filed a defence to the statement of claim. The applicant denied the allegations made in the pleading.
On 4 April 2018, the respondent filed an amended statement of claim (“the ASOC”). The ASOC incorporated changes to the name of the respondent’s company. No other changes were made to the pleading.
On 26 April 2018, the applicant filed an amended defence to the ASOC.
On 28 August 2018, Huntsman LCM made case management orders, inter alia, confirming a hearing date for 25 September 2018.

The First Notice of Motion to Vacate

On 31 August 2018, the applicant filed a notice of motion seeking, inter alia, the following orders:

an order vacating the hearing date of 25 September 2018; and

leave be granted to the applicant to file any further amended defence and/or cross-claim by 14 September 2018.

On 3 September 2018, Kennedy LCM granted the motion and made, inter alia, the following orders:

vacate the hearing fixed for 25 September 2018;

cross-claim and amended defence to be filed and served by 1 October 2018;

defence to cross-claim to be filed and served by 22 October 2018;

parties to exchange evidence, including any expert evidence, by 12 November 2018;

list the matter for Review on 22 January 2019;

matter listed for hearing on 7 February 2019.

On 22 January 2019, the Review was heard by McIntyre LCM, the following orders were entered:

REVIEW ORDERS:
-Orders as per Short Minutes of Order (attached)
ADDITIONAL SERVICE ORDERS:
- Defendant to serve amended evidence by 29/1/2019;
- Statement of facts and issues to be filed within 7 days of hearing date;
- Hearing date 7/2/2019 confirmed;
- Notice of listing to be completed and filed 7 days prior;
- Case summary to be filed 7 days prior
[PDF attached to orders]

The Short Minutes of Order referred to above, were as follows:

applicant to file and serve defence and cross-claim by 29 January 2019;

hearing date confirmed (subject to order 3); and

applicant, if so advised, to file and serve a notice of motion seeking to vacate the hearing date by 29 January 2019 and such motion to be listed for hearing on 4 February 2019.

The Disqualification Proceedings

On 25 June 2018, as mentioned above, a delegate of ASIC made an order under s 206F(1) of the Corporations Act disqualifying the sole director of the applicant, Mr Kender, from managing corporations for 3 years (hereinafter, “the disqualification order”). The disqualification order came into effect on 9 October 2018.
Section 206F of the Corporations Act concerns the power of ASIC to disqualify a director of a company, subject to the requirements of the provision, from managing corporations for up to 5 years. The provision falls within Pt 2D.6 of the Corporations Act, which is titled “Disqualification from Managing Corporations”.
Section 206A(1) provides that a person who is disqualified under Pt 2D.6 of the Corporations Act commits an offence if they participate in certain conduct, which includes the following:

if “they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation”: s 206A(1)(a); and

if they “exercise the capacity to affect significantly the corporation’s financial standing”: s 206A(1)(b).

On 5 September 2018, the applicant’s solicitors, Gardner Ekes Lawyers, were made aware of the disqualification order. On 10 October 2018, Gardner Ekes Lawyers were instructed to file an application for review of the decision in the Tribunal. On 17 October 2018, a request for “Stay Order” of the disqualification order was filed. Mr Kender had sought review of the decision to make a disqualification order and applied to the Administrative Appeals Tribunal (“the Tribunal”) to stay the operation or implementation of the reviewable decision pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 Act (NSW), pending the outcome of the review. A stay application was listed before the Tribunal to be heard 26 November 2018.
By way of background to the disqualification order, Mr Kender was the sole director of two companies that were wound up in 2011. The liquidators filed reports in 2013, pursuant to s 533 of the Corporations Act, advising there would be zero return to creditors. Two other companies were wound up in 2013. Following which, the liquidators filed reports in 2014, pursuant to s 533 of the Corporations Act, advising that unsecured creditors would not receive a return. All of the companies were involved in the recruitment and labour hire business.
In 2011, as mentioned above, Mr Kender had set up another company, the applicant. He continued as the sole director until the disqualification order came into effect.
In support of his application to the Tribunal, in summary, Mr Kender relied upon the ASIC’s delay in taking regulatory action against him. The orders under s 206F were triggered by the s 533 reports, which ASIC had for a significant period of time before it took action. Whilst, Mr Kender did not suggest that the delay invalidated the decision, he contended that there was no reason to rush to implement the decision now.
On 28 November 2018, the Tribunal published its reasons for the decision to grant a stay of the disqualification order made against the Mr Kender by notice dated 25 June 2018 until the decision of the Tribunal on the application for review came into operation or until further order of the Tribunal.
The disqualification order was stayed upon the following conditions:

2. Until further order, the Applicant undertakes that he:
2.1 will not be involved in the management of any company other than Sales Pond Pty Limited (Sales Pond) and its overseas subsidiaries
2.2 will arrange for the appointment of an independent director (… a director who is not an immediate family member or related by marriage) for Sales Pond
2.3 will arrange for the filing of documents with the Respondent giving effect to paragraph 2.2 within 7 days of the making of these orders
2.4 will not use his shareholding(s) to remove the independent director
2.5 will notify the Respondent within 7 days if the independent director referred to in paragraph 2.2 ceases to be a director of Sales Pond
2.6 will retain and cause Hall Chadwick to provide ASIC every 3 months with a report expressing opinions and stating the basis for such opinions in relation to:
a. the solvency of Sales Pond, and
b. the compliance of Sales Pond with its obligations under section 186 of the Corporations Act 2001 (Cth).

2.7 will provide to the Respondent within 7 days of lodgement:
a. all Business Activity Statements of Sales Pond
b. annual income tax returns of Sales Pond

2.8 will provide to the Respondent within 7 days of the date of these orders
a. the Business Activity Statement of Sales Pond for the quarterly tax period ended 30 September 2018
b. the income tax returns of Sales Pond for the financial years ended 30 June 2016 and 30 June 2017

On 10 April 2019, Mr Kender was reinstated as a director of the applicant.
Following the above conditional decision, ASIC contended that Mr Kender had not fully complied with the orders of the Tribunal. This was owing to the fact that the reports produced by Mr Chadwick (see condition 2.6) did not comply with the requirements of the legislation. In the result, part of the undertaking had not apparently been complied with and the stay was, therefore, no longer effective. Thus, the original disqualification order of ASIC remained in force.

The Cross-Claim

On 21 January 2019, the applicant filed a cross-claim against the respondent seeking, inter alia, damages for breach of contract. Both the ASOC and cross-claim were listed for hearing on 7 February 2019.
On 6 February 2019, the respondent filed a defence to the cross-claim. As set out earlier, the respondent was previously directed to file and serve the defence to cross-claim by 22 October 2018. In accordance with that former timetable, the cross-claim was to be filed by 1 October 2018. It may also be noted, on 22 January 2019, McIntyre LCM directed that the cross-claim be filed by 29 January 2019 (notwithstanding the fact is had been filed on 21 January 2019) but did not make any direction as to the timing of the filing of the defence to the cross-claim.

The Second Notice of Motion to Vacate

On 6 February 2019, the applicant filed a notice of motion, together with supporting affidavit of Hector Ekes, sworn 6 February 2019, seeking to vacate the hearing date fixed for 7 February 2019 (“the motion”). Whilst this application was contemplated by the orders of McIntyre LCM, whom provided leave to file and serve a notice of motion seeking to vacate the hearing, his Honour’s order provided a specific timetable, namely, any such motion is to be filed by 29 January 2019 and to be listed for hearing on 4 February 2019. Thus, the motion was filed late and not in conformity with the orders of the Court.
On 7 February 2019, the motion was heard before Atkinson LCM at Sydney Downing Centre Local Court. The basis of the application was summarised succinctly by Atkinson LCM as follows: “the person at the relevant time who was the sole director of the company had been subject to an order by ASIC disqualifying him from managing, being involved in the management of the company”. The relevant person was Mr Kender, the former director of the applicant.
During the course of submissions on the motion, the applicant contended that Mr Kender, the disqualified person, was a key witness in the defence case. However, owing to the operation of s 206A(1)(b) of the Corporations Act, it was contended, Mr Kender was prevented by law from being involved in the proceeding, which bar extended to the provision of evidence. Mr L D Robison of counsel, who appeared for the applicant in the Court below, stated that he was unable to provide the Court with any authority to support that construction.
At the hearing of the motion, Mr Robison confirmed that, on 4 December 2018, documents had been lodged to appoint a replacement director. However, he was unable to confirm whether such appointment had taken effect. Turning to the respondent, Atkinson LCM put the following question to Mr Pokoney:

HER HONOUR: … at what point does the person get the right to manage the corporation?
POKONEY: Upon the valid resolution being passed appointing that person. They become a director of that company. There is a penalty associated if they fail to notify ASIC but that is a matter of maintaining the records of ASIC and there’s a penalty imposed but it doesn’t nullify the appointment of the director itself, him or himself.
HER HONOUR: The director the case law and the law provide that the director is able to exercise the powers to manager a corporation on that’ person’s appointment.
POKONEY: Yes, your Honour.

Mr Pokoney further submitted:

The company has a managing mind on the defendant’s own evidence and in my respectful submission even if it didn’t s 206A does not prevent Mr Kender from giving evidence and my friend who ultimately bears the burden of this motion would need to satisfy your Honour that not only is there no other witness capable of giving that evidence, if it’s documentary or otherwise, but that s 206A then has the consequence that he would be in breach of the AAT’s orders or the disqualify action notice if he was to give that evidence.

In addition to disputing the construction advanced by the applicant, Mr Pokoney further contended: “in any event, there is no evidence to say that but for this disqualification we would be in a position to proceed because steps are on the evidence, or steps have been taken to effect the management of the proceedings”. Reference was made to the absence of expert evidence retained by the applicant and the fact that the respondent “is in a position to proceed having served its evidence”.
It may be noted, whilst the filing of the defence to the cross-claim one day prior to the hearing was referred to in the affidavit in support of the motion, that circumstance was not advanced by Mr Robison as an alternative argument in support of the motion to vacate the hearing.

The Interlocutory Decision – 7 February 2019

Following the hearing of the motion, Atkinson LCM held:

IN MY VIEW IT IS NOT SUFFICIENT FOR THE EVIDENCE NOT TO HAVE BEEN PREPARED AND TAKING EVERYTHING INTO ACCOUNT TODAY IT IS A MATTER WHERE I AM REFUSING THE APPLICATION TO ADJOURN THE PROCEEDINGS SO I DISMISS THE NOTICE OF MOTION.

In coming to that conclusion, Atkinson LCM made the following findings:

Section 206A is not to be construed in the manner advanced by the plaintiff. The section concerns management of a corporation “so that they exercise the capacity to significantly affect the corporation’s financial standing”. Her Honour noted she was not taken to any authority that would suggest a different approach.

A new director had been appointed to the applicant. Her Honour observed, a person “who is able to manage the affairs of the company, in my view, makes that person responsible for managing the corporation”. Thus, “there was a mechanism in place that addresses the risk of breaching s 206A, namely, a new director had been appointed. That person would [m]ake the decisions in relation to the company including decisions as to the progress of the proceedings”.

In light of those findings, Mr Kender, “the former director”, was required to provide affidavit material “which address[ed] the circumstance so the entry into the alleged contract and going to matters as to the defendant’s liability”. As to the “current director”, her Honour observed: “arrangements have been in place for quite some time, namely before 4 December, which would have enabled the current director to give instructions for the evidence to be prepared, give instructions to the lawyers and for the matter to have been ready for hearing today”.

The defendant has filed not evidence.

The Final Hearing in the Court Below – 7 February 2019

On 7 February 2019, immediately following the dismissal of the motion, the hearing of the substantive claim occurred. Her Honour reserved judgment and listed the matter for the purpose of delivering her decision and hearing any argument as to costs on 13 February 2019.

The Substantive Decision – 13 February 2019

On 13 February 2019, Atkinson LCM delivered judgment.
At the outset of the judgment, her Honour dealt with the cross-claim brought by the applicant. Her Honour dismissed the cross-claim for lack of evidence to support the claim, in circumstances where the cross-claimant bore the onus of proving their case on the balance of probabilities.
As to the ASOC, which concerned a contractual dispute, her Honour made the following findings:

I find on the basis of what is before me that a contract was in place, it was in writing, there were terms and conditions attached to that agreement. Consideration was provided by the plaintiff in that it provided the hardware and the services. The contract was breached in that the defendant failed to comply with its obligations under the contract. It has not paid any of the invoices and contrary to what is required by the contract there has been no return of the hardware. I find that the plaintiff was ready, willing and able to perform the contract and no the basis of the breach of contract by the defendant I find that the defendant is liable to pay damages for the breach of that contract.
In relation to the invoices themselves it is clear from the contract and the evidence before me that really it was a debt that had arisen. … Damage has been sustained by the plaintiff in that regard as a result of the breach of contract.
In relation to the equipment it is clear from the evidence that the equipment has not been returned. It is conceded by the plaintiff that the initial sale price of the property would not be the same as used items. … I find the value of the goods is not the same as the sale price but at the time of the contract was terminated the items were still relatively new and doing the best I can I am going to reduce the value of the items to allow for some depreciation by a figure of 50%.

Her Honour held:

ACCORDINGLY IN THIS MATTER I FIND THAT THE PLAINTIFF IS ENTITLED TO DAMAGES QUANTIFIED ON THE BASIS OF THE AMOUNT OF THE UNPAID INVOICES, THE AAPT FEE AS CHARGED TO THE PLAINTIFF, AND 50% OF THE VALUE OF THE EQUIPMENT

Following the above ruling, the parties reached an agreement as to the judgment sum and interest. Mr Pokoney submitted: “The judgment sum based on your Honour’s decision is $49,638.72 and the interest calculation is $4,308.37”.
As a disagreement remained as to costs, the parties were heard as to costs. Following that short hearing, Atkinson LCM held:

THE PLAINTIFF HAS BEEN SUCCESSFUL AND IN MY VIEW IS ENTITLED [TO] ITS COSTS. THEREFORE THE ORDER WILL BE THE DEFENDANT PAY THE PLAINTIFF’S COSTS ON THE ORDINARY BASIS UP TO AND INCLUDING 11 AUGUST 2017 AND ON AN INDEMNITY BASIS THEREAFTER AS AGREED OR ASSESSED. I AM NOT GOING TO MAKE A LUMP SUM COSTS ORDER EVEN THOUGH I HAVE BEEN PROVIDED WITH INFORMATION AS TO WHAT THE PLAINTIFF IS SEEKING. I HAVE GOT TO BE ABLE TO MAKE AN ASSESSMENT AND IN [THE] CIRCUMSTANCES WHERE INDEMNITY OF COSTS HAVE BEEN ORDERED AND I HAVE NOT ACTUALLY GOT ALL THE INVOICES I AM GOING TO LEAVE IT TO THE PARTIES TO AGREE OR TO SEEK ASSESSMENT.

In summary, the Court gave judgment for the respondent and made the following orders:

judgment was given to the respondent in the sum of $49,638.72 plus interest of $4,308.37 (under s 100 of the Civil Procedure Act 2005 (NSW));

applicant to pay respondent’s costs on the ordinary basis up to and including 11 August 2018 and on the indemnity basis thereafter as agreed or assessed; and

cross-claim be dismissed.

The Commencement of Appeal Proceedings

On 5 July 2019, an unsealed copy of the summons was served by way of email on Peter Hodges of Mills Oakley, solicitor on record for the respondent. The applicant submitted that the summons was not filed instanter due to fact the applicant’s firm had no funds held on trust for the applicant to satisfy the filing fee. The summons was filed and served on 10 July 2019.

Stay of Execution in the Court below

On 16 April 2019, the applicant filed a notice of motion seeking stay of enforcement of Local Court judgment (“the stay motion”).
On 16 May 2019, the stay motion was listed before Registrar McTegg. The following orders were, inter alia, made: the stay motion was listed for hearing on 6 June 2019 and the Court noted the undertaking of the respondent not to enforce judgment until finalisation of the stay motion. It may be noted, due to availability issues, the hearing was subsequently re-listed for 1 July 2019.
On 11 July 2019, the matter continued before the Local Court before Atkinson LCM for “Special Fixture” to determine the stay motion. On that occasion, a stay of execution was granted until such time an application for stay could be heard in this Court. On that occasion, Atkinson LCM made an order for stay of judgment until the first mention in this Court.

Proceedings before this Court

On 23 July 2019, following the filing of the summons, the appeal was listed for hearing on 1 November 2019.
On 30 and 31 October 2019, the proceedings were listed for mention. Following which, the Court vacated the date of the hearing and re-listed it for 14 November 2019. Those orders were crystallised in the short minutes of order provided by the respondent, which were dealt with administratively in Chambers.
On 6 November 2019, the Court made the following orders:

The Court NOTES:
A. The decision to vacate the hearing on 1 November 2019 is given upon the basis of the undertaking by the solicitor for the Applicant that that Applicant’s written submissions filed 30 October 2019 will not change, and that the matter will proceed upon the basis only of those written submissions.
Upon the undertaking noted above, the Court ORDERS:
1 The listing of these proceedings for hearing on 1 November 2019 is vacated.
2 The Applicant file and serve a court book by 4:00pm, Monday 4 November 2019.
3 The proceedings be listed for hearing at 2:00pm on Thursday, 14 November 2019 with an estimate of no more than 2 hours.
4 The Applicant’s solicitor is directed to file and serve by 12:00pm on Friday, 8 November 2019:
a. the Notice of Motion ordinarily required in order to seek order 1 of these Orders; and
b. an affidavit accompanying the Notice of Motion in support of the application to vacate the hearing on 1 November 2019, and dealing with all of the matters referred to orally by the Applicant’s solicitor at the mention on 31 October 2019, in support of the application to vacate.

5 Subject to order 6 of these Orders, the Applicant is to pay the First Respondent’s costs:
a. of the mention of 30 October 2019, on an indemnity basis;
b. of the mention of 31 October 2019, on an indemnity basis;
c. thrown away by reason of the vacation of the hearing date under order 1 of these Orders.

6 The Court reserves the question of whether to order that the Applicant’s solicitor pay personally the First Respondent’s costs under order 5 of these Orders.
7 Direct that the solicitors for the First Respondent take out draft orders and provide them to the chambers of his Honour Justice Walton.

Those orders emerged out of an application to adjourn the hearing to a date to be fixed, which was informally made on the 31 October 2019, one day before the date listed for hearing, without a satisfactory explanation, save for the dilatory conduct of the solicitor representing the applicant. It will be observed that solicitor for the applicant, in order to secure an adjournment, gave an undertaking as to how their case would be put at the adjournment hearing, namely, “that that Applicant’s written submissions filed 30 October 2019 will not change, and that the matter will proceed upon the basis only of those written submissions”.
The appeal was heard by this Court on 14 November 2019.

THE APPEAL

Grounds of Appeal

The grounds of appeal are extracted below:

1. Her Honour erred in the exercise of her discretion by refusing an adjournment of the final hearing of the proceedings.
2. Her Honour erred in failure to extend procedural fairness to the appellant in not permitting an opportunity for evidence to be adduced by it.
3. Her Honour failed to give adequate reasons.

Orders Sought

The following orders were sought:

Time for appeal (or judicial review) extended.

To the extent leave is required, leave is granted to appeal.

Appeal allowed.

Order that final judgment/order entered on 13 February 2019 be set aside.

Order that the matter be remitted back to the Court below for re-hearing.

In the alternative to an appeal, an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) that:

the decisions below be quashed; and

an order in the nature of mandamus requiring the Court below to re-determine the matter according to law.

The applicant’s costs of the appeal (or judicial review) and of the proceedings below be paid by the respondent.

Extension for Time and Leave to Appeal

As the appeal was filed on 10 July 2019, the applicant requires an extension of time to bring the appeal. The applicant further requires leave to appeal pursuant to section 40(2)(a) of the Local Court Act 2007 (NSW). However, it will be convenient to deal with these issues after generally considering the merits of the appeal.

Evidence

The applicant relied upon the following evidence:

affidavit of Mr Kender, sworn 4 September 2019; and

affidavit of Mr Ekes, sworn 10 October 2019, together with exhibit HE-1, which relevantly annexed the affidavit of Mr Ekes, sworn 6 February 2019.

The respondent relied on the affidavit of Peter Hodges, sworn 29 October 2019.

LEGAL PRINCIPLES

Discretion

The decision to adjourn proceedings is a discretionary one. Courts have both a specific statutory power under s 66 of the Civil Procedure Act, and an incidental power, to adjourn the hearing of any matter in appropriate circumstances: Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32; Dick v Piller [1943] 1 KB 497; Priddle v Fisher & Sons [1968] 1 WLR 1478.
That discretionary power must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice described in s 58 of that Act. Those considerations require particular justification for refusing an adjournment application if the practical effect would be to terminate the proceedings adversely to the applicant for adjournment: Sali v SPC Ltd (1993) 116 ALR 625 at 628; Scott v Handley [1999] FCA 404; Frugtniet v State Bank of New South Wales [1999] NSWCA 458.
Nevertheless the considerations in ss 56 and 58 also justify the ordinary rule that where proceedings have been regularly fixed for hearing, with due notice to the affected parties, they should commence on the appointed date and continue until their completion. For example, this ordinary rule is illustrated by refusal of adjournment applications made for the purpose of obtaining additional evidence that should have been obtained earlier: Watson v Watson [1968] 2 NSWR 647; (1968) 70 SR (NSW) 203 at 206; or made for the purpose of investigating the availability of additional evidence: EG & H Nominees Pty Ltd v General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 460. In both instances, the applicant had sought an adjournment to obtain more evidence, which application was refused and the decision of the trial judge upheld on appeal. Further, a party who has put itself in a position where it is not able to present its own case, it may be noted, is not automatically entitled to an adjournment: see Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd (Unreported, Supreme Court of Victoria, Full Court, 8 April 1988); Regal Life Insurance Ltd v Pacific Financial Resources Pty Ltd (Unreported, Supreme Court of Victoria, Batt J, 16 November 1994).
The applicant must demonstrate that the exercise of that discretion was infected by an error of the kind described by the Court in House v The King (1936) 55 CLR 499 (“House v King”). The species of error identified in House v King are well known. The classic statement, so far as it concerns this appeal, is to be found in the joint judgment of Dixon, Evatt and McTiernan JJ, at 505:

It must appear that some error has been made in exercising the discretion. If the judge acts upon the wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise it’s own discretion in substitution for his…

As to the principles governing appellate review of a trial judge’s refusal to grant an adjournment, the applicant relied upon the statement of principle in Frugtniet v State Bank of New South Wales. The relevant passage from that judgment is extracted below (at [84]-[89]):

Principles Governing Appellate Review of a Trial Judge’s Refusal to Grant an Adjournment
[84] The principles governing appellate review of a trial judge’s refusal to grant an adjournment are well established and have also been subject of recent decisions in the High Court (Sali v SPC Ltd & Anor (1993) 67 ALJR 841; Thornberry v R (1995) 69 ALJR 777), this Court (GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710) and in the Federal Court (Scott & Anor v Handley, Senior Member, AAT & Anor [1999] FCA 404). These principles may be relevantly summarised as follows.
[85] Firstly, the refusal of an adjournment is discretionary and the principles governing the review of discretionary judgments applies to appellate review of a refusal to grant an adjournment: see House v The King (1936) 55 CLR 499; Thornberry v R at 777. An appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment: Sali v SPC Ltd at 628. It will generally only do so when:
“the exercise … of discretion has miscarried in the sense that that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material … This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal… and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion” Squire v Rogers (1979) 27 ALR 330 per Deane J at 337.

[86] Secondly, it is only in extraordinary cases that the interests of justice will be served by the refusal of an adjournment in a case where to hear the proceedings is likely to terminate the proceedings: Sali v SPC Ltd & Anor; Scott v Handley, at para 29.
[87] An appellate court will interfere where the refusal of the adjournment will result in a denial of natural justice to the party seeking the adjournment and the other party will not suffer any injustice: Maxwell v Kuen [1928] 1 KB 645 at 657, 658; Sali v SPC Ltd at 628.
[88] Thirdly, the discretion of the trial judge has to be exercised having regard to all the circumstances of the case: Scott v Handley at para 33; Squire v Rogers per Deane J at 337.
[89] Fourthly, a trial judge’s conclusion that an adjournment application is merely a delaying tactic is a relevant consideration in determining to refuse an adjournment: Sali v SPC Ltd & Anor.

The respondent did not cavil with the applicant’s reliance upon the authority of Frugtniet v State Bank of New South Wales, and submitted that [90] provides further guidance to the Court, in light of the issues raised on appeal. That passage is extracted below (at [90]):

[90] How then should these principles be applied to this case? Two things should be noted at the outset. First, the manner in which the Frugtniets had conducted the proceedings could have given the appearance that they were seeking to delay the trial. The proceedings had been commenced by the Bank by summons filed on 10 September 1992. The appellants’ Notice of Appearance and Defence were filed promptly. However, the hearing date was not set until 9 December 1994, when Simpson J set the matter down for hearing on 1 February 1995. In late January 1995, the appellants sought an adjournment of the hearing. Hulme J granted an adjournment and directed that the matter be listed on 15 May 1995, for the appointment of a hearing date. His Honour also made an order for the filing of affidavits, noting that a previous order to that effect had been made but no affidavits had been filed by the appellants, notwithstanding that they had indicated to him that they proposed to call some ten witnesses.

An applicant must establish that the adjournment refusal resulted in “injustice”. The concept of injustice broadly involves a situation where there is a risk the determination of the proceedings will not involve a full hearing of all relevant considerations, and the prejudicial consequences of granting an adjournment do not outweigh that risk: Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 at [44] (per Young JA). Relevant injustice may arise because the adjournment decision was based on an inadequate regard to relevant considerations: Squire v Rogers (1979) 27 ALR 330 at 337–8 per Deane J, citing Sackville-West v A-G (1910) 128 LT 265.
Despite the ordinary rule, but consistent with the basic purpose of the discretion, an adjournment application should be granted where it has a proper basis and refusal would result in serious prejudice: see example, Walker v Walker [1967] 1 All ER 412 and Spencer v NSW Minister for Climate Change, Environment and Water [2010] NSWCA 75.
An appeal from a decision to refuse an adjournment, as with the present application, attracts the ordinary appellate disinclination to interfere with the exercise of such a discretionary power. It is a well-established principle that appellate courts are generally reluctant to grant leave to appeal where the order appealed from relates to a matter of practice and procedure, as distinct from involving the determination of substantive rights: In the Will of Gilbert (1946) 46 SR (NSW) 318 at 323; White v Grogan [1972] 2 NSWLR 347; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39.
Ordinarily such a decision can only be overturned on appeal when it is demonstrated that the decision-maker either: made an error of legal principle; made a material error of fact; took into account some irrelevant matter; failed to take into account or gave insufficient weight to, some relevant matter; or, arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. (See Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13] per Bathurst CJ; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]).

Procedural Fairness

It is uncontroversial that litigants before the Court are entitled to procedural fairness. In Jeray v Blue Mountains City Council (No 2) (2010) 180 LGERA 1; [2010] NSWCA 367, Allsop P (as his Honour then was) said at [6]:

[6] At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court.

What is required to afford procedural fairness is also informed by the overarching principles of case management, contained in ss 56-60 of the Civil Procedure Act: Norfeld Pty Ltd v Amanda Lee Jones [2014] NSWCA 408 at [18].

Failure to Give Reasons

As the requirement to give reasons depends on the nature and circumstances of the case, “it is properly within the decision and discretion of the trial judge to determine whether reasons ought to be given”: Pettitt v Dunkley [1971] 1 NSWLR 376 at 390.
If the circumstances of the case require the giving of reasons by the Court, the scope of that obligation should be cautiously stated, lest a rigid interpretation of the obligation conflict with the legitimate practical constraints upon busy trial courts: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259-260.
In Nominal Defendant v Clancy [2007] NSWCA 349, McColl JA (in dissent) summarised the principles relevant to the requirement to provide reasons (at [124]):

[124] The primary judge was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247(at 270) per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. It was necessary that he “ ‘enter into’ the issues canvassed and explain why one case was preferred over another”: Jones v Bradley [2003] NSWCA 81 at [129] per Santow JA (with whom Meagher and Beazley JJA agreed).

GROUND 1: Her Honour erred in the exercise of her discretion by refusing an adjournment of the final hearing of the proceedings

Submissions of the Applicant

Notwithstanding the articulation of three grounds on the summons, at the outset of oral submissions, counsel for the applicant submitted that the appeal is primarily concerned with ground 1 and described the application before the Court as “a one point matter”. In that light, it was conceded, “if the Court finds against that proposition, all the things in the summons then become somewhat nugatory… the summons just simply falls away”.
Turning to the submissions of the applicant. The written submissions filed by the applicant outline a procedural history and the orders sought. They do not expressly engage with the grounds of appeal. In the result, the following summary of submissions is based upon oral submissions advanced at the hearing.
The following submissions were relied upon in support of ground 1:

The applicant accepted that the refusal of an adjournment is discretionary and the principles governing the review of discretionary judgments applies to appellate review of a refusal to grant an adjournment: see House v The King (1936) 55 CLR 499 at 505; Frugtniet v State Bank of New South Wales at [85].

The circumstances of the application before Atkinson LCM were not an “extraordinary case” where the interests of justice were served by the refusal of an adjournment: Frugtniet v State Bank of New South Wales at [86]. It was contended, “[t]he only prejudice that is suffered at that point in my submission is one of time in not bringing the proceedings to a quicker conclusion”. It was submitted that such prejudice could have been overcome by way of costs order in relation to costs thrown away.

The discretion of the Atkinson LCM was not exercised having regard to all the circumstances of the case: Frugtniet v State Bank of New South Wales at [88], which included having regard to the “failure” of the respondent to file and serve a defence in relation to cross-claim until 6 February 2019 – 1 day before the hearing. Reference, in this respect, was made to the affidavit of Mr Ekes sworn 6 February 2019, which was before her Honour on the motion. In addition to the primary argument advanced at the hearing vis-à-vis the impact of the disqualification order, the applicant relied upon the second reason for seeking an adjournment, which appeared in Mr Ekes’ affidavit at para 18:

18. The second issue raised in applying to vacate the Hearing date of 7 February 2019 lies on the Plaintiff in failing to file and serve a defence in relation to the Cross-Claim and Further Amended Defence filed 21 January 2019. This has not occurred.

In advancing submissions with respect to Atkinson LCM’s discretion, counsel for the applicant:

Repeated submissions advanced in the Court below, with respect to the impact of the disqualification proceedings upon the applicant, which included further reference to the affidavit of Mr Ekes at para 17:

17. For these reasons, there have been difficulties and delay in obtaining further detailed instructions on behalf of the defendant. It is therefore the defendant’s position that due to the above proceedings on foot, proper instructions and case management was hindered, resulting in timetable slippages and the lack of preparation for the Hearing.

Reference was also made to “additional evidence that was filed on the appeal” before this Court, namely, the affidavit of Mr Kender dated 4 September 2019, which was not before her Honour. Whilst it was accepted that Atkinson LCM had no evidence as to the state of mind of Mr Kender at the time of the motion, it was contended that Mr Kender’s affidavit demonstrated that reasons for the evidentiary omissions exist.

As to the evidence before her Honour, counsel for the applicant conceded it was “not of the best frame” and “could have been amplified to assist the Court further”. However, it was contended, “there were some reasons that were advanced as to why the adjournment should be given”. It was also submitted that the affidavit of Mr Ekes was “the high point of the evidence that was put before her Honour in the Court below”, having provided two separate bases supporting the grant of an adjournment.

As a result of the decision to dismiss the motion, it was contended that the applicant “had not been availed an opportunity to file any evidence in respect of [the] Amended Statement of Claim and Cross-Claim”. Hence, the applicant was prejudiced by being unable to file evidence in support of its defence to the ASOC or cross-claim.

The applicant further contended that the proper question to be considered by her Honour was as follows: “Should her Honour have granted an adjournment on terms such as to compensate the plaintiff of the delay that it occasioned by the time required by the defendant to articulate its evidence and to file it”.

In an exchange with the Court, the applicant contended:

HIS HONOUR: But in the absence of evidence, clearly with the question of why no evidence was put on by the defendant below, one view that her Honour may have legitimately taken is that what she was being presented with or attempted to be presented with was a fait accompli by a moving party on the motion.
So, if one turns up without any evidence and says, "Well, you must adjourn because there is no evidence", one does so on the expectation that only one result will follow, namely that the proceedings will be adjourned.
EARDLEY: Well, there is certainly evidence on the motion, your Honour and the vacation of the hearing date wouldn't have cured the problem with the procedural orders as to evidence by itself. There would need to be further procedural orders made.
HIS HONOUR: No. What I am raising with you is the proposition that an adjournment had to be granted because, as a matter of logic, there was no evidence and, therefore, the proceedings would have to be dismissed may have a bootstrap's element to it --
EARDLEY: It may very well.
HIS HONOUR: -- that a choice is made consciously without proper explanation to not provide that evidence to the Court or put that evidence forward on whatever basis, whether by summons or otherwise.
EARDLEY: Her Honour may well have thought that, but she didn't articulate that.
HIS HONOUR: You are asking me to review her decision.
EARDLEY: But it certainly didn't articulate our position as a delay tactic. I think that's really what it would amount to. Her Honour didn't find that.

As to the error in discretion exercised by Atkinson LCM:

The applicant characterised the House v King error as one of a failure to take into account some material considerations, namely, the relevant issue of prejudice to the defendant in dismissing the motion (“the prejudice error”).

The applicant accepted that there is no dispute as to the findings of fact made by the magistrate in the context of giving her ruling on the adjournment application.

The applicant did not contend that Atkinson LCM allowed extraneous or irrelevant matters to guide her discretion.

Submissions of the Respondent

During the hearing of the summons, in response to a question from this Court, counsel for the applicant articulated that the error relied on in support of its summons, namely, the prejudice error. Prior to the hearing, the applicant had not otherwise identified the House v King error, including that error, upon which it relied in its written submissions dated 10 October 2019.
In addition to written submissions dated 29 October 2019, and with leave of the Court, the respondent provided a further written submission on the “Further Error Identified During Oral Submissions” dated 15 November 2019, which is incorporated into the below summary.
As to the prejudice error, the respondent’s primary position was that the applicant ought not be entitled to rely on that formulation of error in circumstances where:

it was not identified in the summons;

it was not addressed in the written submissions of the applicant;

on 31 October 2019, the solicitor for the applicant told the Court that “the primary written submissions will not be changing, we maintain those submissions”. A notation was made by the Court that the decision to vacate the hearing on 1 November 2019 was given on the basis of the undertaking of the solicitor for the applicant that its written submissions filed 30 October 2019 would not change, and that the matter would proceed on the basis only of those written submissions.

If that primary submission was not accepted, and the Court held the applicant is entitled to rely on the prejudice error, the respondent contended that ground 1 must fail for the following reasons:

Atkinson LCM did consider the prejudice to the applicant. The issue of prejudice to the applicant was inherent in the application before her Honour. If the application failed, the necessary consequence was that the hearing would proceed without the applicant having any evidence. It is noted that:

In large part, the evidence before her Honour on the application concerned the lack of preparation for hearing: Mr Ekes’ affidavit at para 17.

Oral submissions were made on behalf of the applicant about the effect of s 206A of the Corporations Act, and the restriction that section placed on the ability of a person to give evidence in litigation “because that obviously has an effect on the financial standing of the corporation whether the company succeeds or fails in the litigation…”. This was expressly referred to by her Honour in delivering her reasons.

Her Honour stood the matter down to allow the parties to research the effect of s 206A of the Corporations Act. Her Honour said:

…at this point just quick and cheap taking into account all of the other provisions including 58 and 58(2) which talks about the steps that could have been taken earlier, it’s come too later and really it’s a situation where I’d be looking to press ahead with the hearing but out of fairness to you I’m happy to stand it down to give you the chance to look at things.
[Emphasis added.]

In delivering reasons on the motion, her Honour expressly referred to the fact that the applicant had filed no evidence in the proceedings.

In making the following finding, it was implicit that her Honour recognised the applicant had not prepared evidence and for that reason, was not ready for the hearing:

...in my view arrangements have been in place for quite some time, namely before 4 December, which would have enabled the current director to give instructions for the evidence to be prepared, give instructions to the lawyers and for the matter to have been ready for hearing today.
[Emphasis added.]

The issue of prejudice to the applicant was considered by her Honour. On the basis of the matters identified in the precedings paragraph, it is plain that her Honour did have regard to the fact that the applicant had no evidence in respect of the substantive proceedings, and the consequence of that, if the motion was dismissed.

It is accepted that her Honour was required to consider that the refusal of the application might result in the applicant being prevented from adequately presenting its case, with the consequence that there may be a miscarriage in the exercise of the discretion: see example, Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto [2019] NSWSC 1454 (“Pilato”) at [34], citing Cohen v McWilliam (1995) 38 NSWLR 476 at 481, 491, 497-503; Thornberry v The Queen (1995) 69 ALJR 777 (a criminal case).

That consideration did not, however, take precedence over other considerations that her Honour was required to take into account (and which her Honour did take into account): Pilotto at [26]-[34], Hamod v State of New South Wales [2011] NSWCA 375 (“Hamod”) at [131]-[145].

As to the asserted difficulties in preparing lay evidence, the submissions of the applicant did not address the delay in the preparation of expert evidence. There were two orders made for expert evidence on 15 May 2018. Understood in the context of the procedural history of the matter, her Honour’s findings in disposing of the motion were consistent with the applicant having exhausted its “proper opportunity” to prepare its evidence for the final hearing. That is a matter separate to Mr Kender's ability to prepare evidence; whether there had been a contravention under s 206A, had he prepared that evidence. It was contended that the applicant had been given ample opportunity to prepare its evidence.

In the result, the applicant has not established that the exercise of her Honour’s discretion was infected by the kind of error described in House v King.

In addition to the submissions advanced vis-à-vis the prejudice error, the following is a summary of the respondent’s remaining submissions with respect to ground 1 (albeit with some overlap with submissions advanced with respect to ground 3):

Following oral argument, her Honour correctly identified the gravamen of the applicant’s submission, weighing those against the discretionary considerations and case-management principles.

In approaching the motion, her Honour noted the applicant’s previous, successful, application to vacate the former date for final hearing. Her Honour found that the grant of a previous indulgence was a relevant factor in the consideration of the applicant’s subsequent application to vacate the final hearing:

It is important to have a look at the history of this matter. This is essentially a debt recovery claim and a perusal of the file indicates that in September last year there was a vacation of the hearing date and the fresh hearing date was set for today. The notice of motion on that occasion was sought to file and serve further pleadings.

Critically, her Honour considered, but rejected, the applicant’s assertion that the former director’s suspension from office precluded him from giving evidence at the final hearing. That contention formed the principal basis upon which the applicant sought to vacate the final hearing.

The issue was considered at some length by her Honour. Ultimately, her Honour was not persuaded to the applicant’s view, and held:

As I understand it the [Applicant] has filed no evidence in the proceedings. The person who is the subject of the ASIC notice of disqualification has indicated a concern that he not breach the provisions of s 206A of the Corporations Act which prevents disqualified persons from managing corporations…
In my view, it is not a matter that would prevent the former director from providing evidence in this proceedings and in my view arrangements have been in place for quite some time, namely before 4 December 2018, which would have enabled the current director to give instructions for the evidence to be prepared, give instructions to the lawyers and for the matter to have been ready for hearing today.

The conclusion by her Honour was consistent with the concession made by counsel for the applicant during oral argument, that the former director was capable of giving instructions without conducting the litigation on behalf of the company:

HER HONOUR: But if a new director’s in the new director would be giving the instructions; the other person would simply be a witness in the proceedings.
ROBISON: Yes I accept that.

Honour properly concluded by reference to the overarching principles, contained within the Civil Procedure Act, in the circumstances of the case:

In all of those circumstances and noting s 56 and onwards that requires proceedings to be dealt with in a just, quick and cheap manner and in particular s 58, which deals particularly with applications for amendment, adjournment and other matters and sets out the matters that the Court is to have regard to, this is a situation if there was it should have been dealt with much earlier but in my view there was a mechanism in place that addressed the risk of breaching s 206A, namely a new director had been appointed. That person would take the decisions in relation to the company including decisions as to the progress of the proceedings.
In my view it is not sufficient for the evidence not to have been prepared and taking everything into account today is a matter where I am refusing the application to adjourn the proceedings so I dismiss the notice of motion.

Counsel for the respondent further noted “there was no application made for a stay of the proceedings on the basis that Mr Kender was not able to give instructions or prepare evidence or anything like that, or that somebody else was not in a position to do that”.

On the appeal, the applicant also relies on the fact that the respondent filed its defence to the applicant’s cross-claim on 6 February 2019, being one day before the hearing on 7 February 2019. The respondent contended that provides no basis to disturb her Honour’s orders. While that matter was raised in the applicant’s evidence in support of the motion to vacate the final hearing, the transcript reveals it was not raised by the applicant in oral argument before her Honour.

Further, in response to slippage in the timetable by the respondent, it was contemplated at 22 January 2019, by the Court, that the applicant could file a motion to vacate, as indicated by the orders made on that date. However, the applicant “could have done that at any point before 6 February; they could have got their house in order and they could have put together the package of evidence in support that you might have expected on the application, but they did not do that. They waited until 6 February to file their motion and they proceeded on the evidence that they put on in support”.

It was also contended that by its written submissions dated 10 October 2019, the applicant was merely re-agitating its application on appeal without identifying any error in her Honour’s approach.

Nothing in her Honour’s consideration and determination of the applicant’s motion has been identified as constituting a House v King error. In those circumstances, the applicant’s first ground of appeal should be rejected.

Consideration: Ground 1

It is not in dispute that the decision to refuse an adjournment is a discretionary one and that the principles set out earlier in this judgment apply.

This first ground of appeal brought by the applicant requires the applicant to demonstrate that the Atkinson LCM’s exercise of discretion to refuse an adjournment was infected by an error of the kind described by the High Court in House v King. In advancing submissions with respect to that contention, the applicant accepted that there is no dispute as to the findings of fact made by the Atkinson LCM in the context of giving her ruling on the adjournment application and did not contend that Atkinson LCM acted on the wrong principle or allowed extraneous or irrelevant matters to guide her discretion. The remaining relevant consideration, therefore, was whether Atkinson LCM failed to take into account some material consideration.
In a response to a question of this Court, the applicant characterised the error as one of a failure to take into account some material considerations, with the material consideration being identified as the issue of i prejudice to the applicant in dismissing the motion. Reliance upon prejudice collided with the undertaking given by the solicitor for the applicant as recorded in orders given on 6 November 2019.
The onus lies with the applicant to establish the issue of prejudice to the applicant was a material consideration; and that material consideration was not taken into account in the Atkinson LCM’s exercise of discretion to refuse an adjournment of the final hearing of the proceedings; and the risk of such prejudice to the applicant by refusing the adjournment out-weighed the prejudicial consequences of granting an adjournment.
Turning to the first consideration, it may be accepted that prejudice to the applicant in refusing an adjournment application is prima facie a material consideration. In the absence of an adjournment to obtain or arrange evidence, the applicant, who had not filed any evidence with respect to its cross-claim (or the ASOC), would be unable to make out its case.
As to the second consideration, in my view, the applicant has failed to establish, on the material before this Court, that the potential prejudice to the applicant was not taken into account in Atkinson LCM’s exercise of discretion to refuse an adjournment. That conclusion may be reached for the following reasons:

The issue of prejudice to the applicant was inherent in the application before her Honour. If the application failed, the necessary consequence was that the hearing would proceed without the applicant having any evidence.

In delivering reasons on the motion, her Honour expressly referred to the fact that the applicant had filed no evidence in the proceedings. Her Honour also expressly addressed the circumstances, notwithstanding the applicant’s erroneous construction of s 206A, that provided the applicant with a means to obtain evidence: “arrangements have been in place for quite some time, namely before 4 December, which would have enabled the current director to give instructions for the evidence to be prepared, give instructions to the lawyers and for the matter to have been ready for hearing today”. Her Honour, in that respect, was referring to the appointment of a replacement manager to the applicant. It may be inferred that her Honour did have regard to the fact that the applicant had no evidence in respect of the substantive proceedings, and the consequence of that, if the motion was dismissed.

Finally, as to the requirement of the Court to consider that the refusal of the application might result in the applicant being prevented from adequately presenting its case, with the consequence that there may be a miscarriage in the exercise of the discretion, does not take precedence over other considerations that her Honour was required to take into account (and which her Honour did take into account): Pilotto at [26]-[34], Hamod at [131]-[145]. In particular, her Honour had regard to the need to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings: the Civil Procedure Act, s 56(1). See also Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 182-183, 200-201, 205, 210-211, 217-218.
In my view, and with respect, her Honour’s ex tempore decision provides a succinct and clear outline of reasons that display a logical process of reasoning as to why her Honour exercised her discretion in the manner that she did. First, at the outset of her Honour’s reasons, Atkinson LCM identified the gravamen of the applicant’s submission, noting the sole basis of the adjournment application concerned the impact of the disqualification proceedings upon the preparation of evidence for the hearing. Her Honour then proceeded to consider that application in the light of the discretionary considerations and case-management principles, in particular those under the Civil Procedure Act. Second, in approaching the motion, her Honour noted the applicant’s previous, successful, application to vacate the former date for final hearing. Her Honour found that the grant of a previous indulgence was a relevant factor in the consideration of the applicant’s subsequent application to vacate the final hearing. Nextly, her Honour considered, but rejected, the applicant’s assertion that the former director’s suspension from office precluded him from giving evidence at the final hearing. That contention formed the only basis upon which the applicant sought to vacate the final hearing. That conclusion by her Honour was also consistent with the concession made by counsel for the applicant during oral argument, that the former director was capable of giving instructions without conducting the litigation on behalf of the company. Her Honour properly concluded by reference to the overarching principles, contained within the Civil Procedure Act, in the circumstances of the case, to exercise a discretion to refuse adjournment and dismiss the motion. It was implicit her Honour’s judgment that costs were not an adequate remedy in the circumstances having regard to the factors discussed below.
When understood in the light of the procedural history of the matter, I accept the submission of the respondent that her Honour’s findings in disposing of the motion were consistent with a conclusion having been reached, which was available in the circumstances before her Honour that the applicant had exhausted its proper opportunity to prepare its evidence for final hearing. That is a matter separate to Mr Kender’s ability to prepare evidence, having regard to the argument that he was precluded from doing so due to a perceived contravention of s 206A of the Corporations Act. Further, the context before her Honour was one in which the applicant was required to file its motion to vacate by 29 January 2019 and, in any event, could have done so any time before the 6 February 2019, in order to properly address the issues it perceived it was confronting, but chose to make the application the day before the hearing upon a basis which, as her Honour found, was flawed.
It is correct that her Honour was required to consider, in accordance with Frugtniet v State Bank of New South Wales, that the refusal of the application might result in the applicant from being able to adequately prepare its case and any consequential injustice. Those considerations, however, need to be considered in the context of the entirety of the issues her Honour was required to take into account (which her Honour did), which ultimately resulted in her Honour properly finding there was not an injustice in refusing the adjournment, notwithstanding the absence of evidence having been prepared by the applicant and the resultant consequences for its cross-claim.
Although overlapping with ground 2, it is implicit in her Honour’s reasoning that the conduct of the applicant had the appearance of and created the effect of seeking to delay the hearing, which was only concerned with a debt proceeding. It may be noted, in that respect, that the applicant did not indicate to her Honour that steps had in fact been taken to prepare the evidence in its case, such that the proceedings may be readily disposed of in the event that an adjournment was given for a short timeframe. Nor was there any indication in the present proceedings that steps had been taken before the hearing of the motion to prepare such evidence in draft or otherwise beyond a bare statement of Mr Kender indicating his willingness to prepare such evidence. Nor had that position been advanced by the time of the hearing in this Court.
It should also be observed that the applicant advanced a series of submissions that are not sustained by the material before the Court, have a bearing on the disposition of this ground and to some extent overlap with considerations with respect to ground 2:

The applicant submitted that the fact that the respondent filed its defence to the applicant’s cross-claim on 6 February 2019, one day prior to the hearing, was raised as a relevant consideration before Atkinson LCM on the hearing of the motion. That submission is misleading and incorrect. During the hearing of the motion, counsel for the applicant did not advance any submission with respect to the timing of the filing of the defence to the cross-claim. It is true that the fact of the timing of the defence to the cross-claim was identified at paras 18-19 of Mr Ekes’ affidavit. However, in the absence of submissions advanced by the applicant placing reliance upon that factor before Atkinson LCM, the circumstances in which the defence to the cross-claim was filed do not amount to a material consideration that was not taken into account by Atkinson LCM. It is true that the exercise of discretion by Atkinson LCM required having regard to all of the circumstances of the case: Frugtniet v State Bank of New South Wales at [88], but the applicant did not relevantly agitate that issue as part of its case for the adjournment. In any event, the applicant should not be permitted to advance on the appeal matters not ventilated below (particularly in relation to discretionary conditions): Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at [9]; see also, Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 at [14]-[17]. In support of the argument with respect to delay and difficulties encountered in arranging for evidence, reliance was placed upon the affidavit of Mr Kender. As that affidavit was not before Atkinson LCM, it is not relevant to this Court’s assessment of her Honour’s decision. Further, I accept the submission of the respondent that such a submission again seeks to re-agitate issues, albeit with further evidence, that were previously considered in the Court below.

The applicant argued that the motion was denied in circumstances where the applicant had not been availed an opportunity to file any evidence in respect of the ASOC and cross-claim. In circumstances where numerous orders were made for the filing of evidence and leave granted for expert evidence on 15 May 2018, I reject the applicant’s submission. The applicant had ample opportunity to arrange and obtain evidence. It is notable that the applicant had also failed to take steps to obtain expert evidence. I consider that the applicant had a number of opportunities to prepare and serve evidence to defend the claim against it, as outlined in the procedural background above. Her Honour’s finding that the disqualification of Mr Kender resulted from a misapprehension of the applicant’s statutory limitation is not challenged on this appeal.

There was no error, in my view, in Atkinson LCM’s exercise of discretion insofar as the interlocutory decision was based upon her Honour’s understanding of the sole basis put before her on the application to adjourn. Further, I accept, with respect, her Honour’s reasoning as sound with respect to the issues arising under s 206A of the Corporations Act. The sole basis for bringing the adjournment application, in my view, was flawed from the outset. Whilst not squarely raised before her Honour, the question of prejudice, generally, was raised and considered appropriately in the exercise of her Honour’s discretion. The applicant raised another particular issue as to prejudice (namely, the timing of the filing of the defence to the cross-claim), which was not raised before her Honour, but, as discussed above, that consideration could not properly constitute error as it was not an issue raised below. In any event, that consideration did not result in error for the reasons discussed above.
Finally, it was conceivable that the applicant were thereby precluded from raising the issue of prejudice by the operation of the undertaking given by the applicant’s solicitor. Whilst it is unnecessary to decide this matter on that basis, it may be noted that a question by the Court as to what was the error in the exercise of the discretion, relied upon by the applicant to prosecute this contention, did not alleviate the undertaking given to obtain an adjournment.
Ground 1 lacks merit.

GROUND 2: Her Honour erred in failure to extend procedural fairness to the applicant in not permitting an opportunity for evidence to be adduced by it

The applicant’s second ground of appeal is expressed to be a denial of procedural fairness, constituted by an alleged failure to permit the applicant an opportunity to adduce evidence in the proceedings below.
The applicant led no evidence in the proceedings below (with the exception of evidence in support of its motion). By its written submissions, the applicant contended:

“The Motion was denied in circumstances where [the applicant] had not been availed an opportunity to file any evidence in respect of the Amended Statement of Claim and Cross-Claim”; and

“…Her Honour proceeded to determine the case in circumstances where the Amended Statement of Claim was undefended, and no evidence was put on for the Cross-Claim…”.

In light of the procedural history, earlier summarised in this judgment, those two contentions cannot be accepted. The applicant had been afforded opportunities to file evidence to defend the claim against it, as evinced by the collective effect of the following:

On 4 April 2018, the ASOC was filed by the respondent.

On 26 April 2018, the applicant filed a defence to the ASOC.

On 15 May 2018, Atkinson LCM made an order that: “All parties to serve evidence by 31 July 2019”.

On 28 August 2018, Huntsman LCM made an order that “[The applicant] to serve evidence by 7 September 2019”.

On 3 September 2018, orders were made by consent by Kennedy LCM, (following applicant’s first motion to vacate the final hearing), including an order that required the: “parties to exchange evidence, including any expert evidence, by 12 November 2018”.

On 7 February 2019, submissions were made on behalf of the Applicant, at the final hearing.

Thus, the applicant had a number of opportunities to prepare and serve evidence to defend the claim against it. The applicant’s contention that it was denied procedural fairness by the Court, in my view, plainly ignores the successive opportunities afforded the applicant which it failed to act upon in accordance with directions of the Court. Further, notwithstanding that fact, the explanation for the failure to take steps required in the conduct of its case given by the applicant to Atkinson LCM was rejected by her Honour and the appeal against the decision in that respect was unsuccessful. In substance, the applicant’s application to adjourn a final hearing of its application on a flawed basis, in the light of a succession of failures by the applicant, was rejected in a proper exercise of discretion below.
This ground of appeal lacks merit.

GROUND 3: Her Honour failed to give adequate reasons

Ground 3 does not specify the decision with which her Honour failed to give adequate reasons. As her Honour provided separate sets of reasons with respect to both the interlocutory and substantive decisions, the adequacy of her Honour’s reasons will be considered in turn.

The Interlocutory Decision

The Local Court of NSW is a busy Court. On the day of hearing, her Honour noted the many competing demands upon the Court’s limited time that day:

HER HONOUR: I want you to do that. I’ve actually got a lot of work, I am going to have to do quite a number of the hearings today….I just need to as you can see I don’t have a lot of help today so I’ve just to do it all myself.

The Court’s ex tempore judgment must be considered against the backdrop of the practical realities of the Local Court. Viewed in that light, the decision of the Court can properly be seen as containing a concise statement of her Honour’s consideration of the motion.
During the course of oral submissions in these proceedings, as to her Honour’s reasons for refusing the adjournment, the applicant submitted:

her Honour looked at the evidence and simply formed the view and had set out a number of reasons as to why that she was going to dismiss the motion. But what she didn't articulate in her reasons, she didn't set out any of the prejudice that would be occasioned to the defendant as a result of not being able to file the evidence and, as a consequence of that, that brought the cross claim to an end, because one couldn't cross the road upon section 140 of the Evidence Act because there was no evidence on.

Whilst the applicant did not fully develop its submission as to the inadequacy of reasons vis-à-vis the prejudice to the applicant. At its highest, the contention sought to be advanced appears to overlap with concerns raised under ground 1, namely, a material consideration was not addressed. As such, the applicant is left wanting as to whether Atkinson LCM properly considered and/or dealt with that consideration as to prejudice.
In light of my findings with respect to ground 1, and having regard to the reasons which were delivered, I am not satisfied that her Honour failed to give adequate reasons on the motion.

The Substantive Decision

At the conclusion of the hearing on 7 February 2019, her Honour twice said that the matter would be listed again on 13 February 2019 for the purpose of delivering oral judgment. The transcript does not record that the applicant objected to that course, or made any application for written reasons.
On 13 February 2019, her Honour delivered a comprehensive oral decision, summarising the Court’s findings on the evidence before it.
No attempt has been made by the applicant to identify a deficiency in her Honour’s reasons for the Court’s judgment. The respondent submitted, in those circumstances, and having regard to the reasons which were delivered, the Court could not be satisfied that her Honour failed to give adequate reasons. I accept that submission.
This ground of appeal, to the extent it concerns the substantive decision, must also fail.
In all the circumstances, ground 3 lacks merit.

JUDICIAL REVIEW

During the course of oral submissions, counsel for the applicant submitted that the argument with respect to judicial review might not be pressed, in light of the House v King argument advanced under ground 1. At the close of oral submissions, the applicant confirmed it did not seek to advance submissions in this respect.

EXTENSION OF TIME

It is not in dispute that the applicant brought the appeal late.
A party seeking an extension of time in which to bring an appeal must satisfy the Court that it is in the interests of justice that the extension be granted. This ordinarily requires the party seeking such an extension to adduce evidence adequately explaining the failure to comply with the applicable time limits under the rules: Guinta v Commonwealth Bank of Australia [2008] NSWSC 222 at [28], citing Jackamarra v Krakouer (1998) 195 CLR 516 at 540.
The applicant addressed the relevant threshold questions in oral submissions:

The plaintiff contended that reasons for the delay in bringing the appeal had been provided: “They are not the best polished reasons, but they are reasons in the circumstances”. In this respect, the applicant relied upon the two explanations provided by Mr Kender in his affidavit sworn 4 September 2019 and Mr Ekes in his affidavit sworn 10 October 2019. By his affidavit, Mr Kender sets out the impact of the disqualification proceedings upon his ability to prepare evidence to support his case in the Court below. The affidavit of Mr Ekes provides, inter alia, a further explanation for delay at para 25: “The summons was not filed instanter due to [the] fact my firm had no funds held on trust for Sales Pond to satisfy the filing fee”.

As to the differences in explanation between the two accounts, and in response to any perception of opposition, it was submitted: “A barrister may form the view that things are delayed because filing fees were delayed, whereas the client can certainly form a view what caused problems which gave rise to the issue; well, all of my business problems at the time”. Hence, it was contended that they were “complimentary”.

Reliance was placed upon the authority of Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220 at [15], which cited Gallov Dawson (1990) 64 ALJR 458 (“Gallo”) at 459, namely, that leave to proceed out of time “will not ordinary be granted where an applicant has no prospects of success”.

Counsel for the respondent contended that the applicant had failed to adduce evidence containing a satisfactory explanation for the delay in bringing its appeal outside the permissible timeframe. The limited evidence available from the applicant instead offers contradictory explanations, neither of which provide an adequate or complete explanation.
That contention was amply supported with reference to the following:

Mr Kender deposed to his suspension of directorship in 2018 and confirmed that the applicant resolved the “burdens that plagued the original proceedings” on 10 April 2019, leaving, in the respondent’s submission, the subsequent delay of about 3 months entirely unexplained.

The rules require the summons to be filed by 13 March 2019, if the Court accepted the material date to be 13 February 2019, being the primary judgment. Mr Kender, by his affidavit, deposed that he became reinstated as a director in April 2019, such that the burdens on him were, lifted and he was, at that stage, in a position to deal with this matter. That explanation, it was contended, does not explain why there was delay between 10 April and 10 July of 2019 when the summons was eventually filed.

Mr Ekes by his affidavit sworn 10 October 2019 provided a different explanation to that proffered by Mr Kender. Mr Ekes gave evidence of the inability to file the summons seeking leave to appeal “due to the fact that [his] firm had no funds held on trust… to satisfy the filing fee”. No evidence was given as to whether the applicant itself had available to it sufficient funds to satisfy the filing fee in the months following the material date, nor the steps taken by the applicant to provide those funds to its solicitors at any time prior to July 2019.

Reference was also made to the fact that the summons was filed shortly before the Local Court proceedings with respect to the stay motion. Counsel for the respondent submitted, “None of that is addressed or explained, so we say that the applicant does not meet that threshold issue of explaining the delay”.

In the respondent’s submission, the applicant’s evidence on the cause of delay falls far short of providing an adequate explanation as to the cause of delay, or the efforts made to minimise it.
During the course of the hearing on 14 November 2019, his Honour enquired whether the issue of prejudice to the applicant was a relevant consideration in exercising the discretion to extend time under r 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), and the Court asked counsel for the respondent to let the Court know of any authorities on the point, if any were identified. The respondent has since identified the following authorities: Gallo at 459 (per McHugh J); Nanschild v Pratt at [38]-[44] (per McColl JA, with Campbell JA agreeing); and Personnel Concepts WA Pty Limited v Adam & Ors t/as Marsdens Law Group [2019] NSWSC 301 (“Personnel Concepts”) at [14]-[23] (per Wright J).
In Nanschild v Pratt, the McColl JA (with Campbell JA agreeing) observed (at [38]-[44]):

[38] The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J.
[39] The underlying premise to these propositions in Gallo (as is made apparent in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (at [7]) per Brennan CJ and McHugh J) is that the Court's approach to an application to extend the time for filing an appeal from a judgment determining substantive rights (or here to seek leave to appeal) "at any time" recognises that "the respondent to the application has a vested right to retain the judgment" proposed to be the subject of appeal: Jackamarra v Krakouer (at [4]); Tomko v Palasty (No 2) [2007] NSWCA 369 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing).
[40] Tomko concerned an application for an extension of time to institute an appeal. The necessity to have regard to the vested right to retain the judgment in the case of an application for an extension of time applies, in my view, with even more force when the application is one for an extension of time to file a summons seeking leave to appeal. In such cases, the general principle as to the finality of judgments has been reinforced by the legislature imposing a monetary limit on the applicant's right to challenge a judgment.
[41] In Tomko (at [55]) Basten JA identified four factors as of general relevance to an application to extend time within which to appeal: the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application.
[42] In the context of an application for an extension of time to seek leave to appeal, the "fairly arguable case" factor (Tomko at [55]) concerns the prospect of obtaining leave to appeal if the extension is granted: Komba v National Australia Bank Limited [2010] VSCA 232 (at [29]) per Emerton AJA (Nettle JA agreeing).
[43] In cases involving leave to appeal, it is also necessary to bear in mind that it is not sufficient to show that the judgment appealed against was arguably wrong. Access to an opportunity to appeal has to be kept in proportion with the nature of the controversy, the amount involved and the amount which it is appropriate to spend on resolving the dispute: Bladwell v Davis [2004] NSWCA 170 (at [23]) per Bryson JA (Ipp and Stein JJA agreeing).
[44] The applicant bears the burden of persuading the Court that there are proper grounds to grant her application for an extension of time: Tomko (at [80]). Mr Reuben submitted that the justice of the case would dictate that an extension of time to seek leave to appeal should be granted and that there was no real prejudice caused by the delay because the XXX and YYY properties had still not been sold.

In Personnel Concepts, Wright J summarised the relevant principles with respect to extension of time at [14], extracted below:

[14] The principles to be applied when considering whether an extension of time in which to appeal should be granted, under provisions such as r 50.3(1)(c) or r 50.12(1)(c), are well established. The party seeking the extension must establish that strict compliance with the rules will work an injustice upon that party: Gallo at 459. The relevant considerations when the institution of an appeal is concerned are: the length of the delay, the reasons for the delay, the strength of the case of the party seeking to appeal, and whether the other party or the administration of the court’s business would be prejudiced by granting the application: Jackamarra v Krakouer at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55]; Nanschild v Pratt at [38]-[43].(See also McColl JA in Jingalong Pty Ltd v Todd [2014] NSWCA 330 at [39]–[44]).

A summons commencing leave to appeal must be filed within 28 days of the material date: see rr 50.2 and 50.3 of the UCPR. If the appeal is from a judicial decision the material date is when the decision was “pronounced or given”. The power to extend time conferred by r 50.3(1)(c) overcomes the common law principle that generally an extension of time could not be granted after the original period had expired: Zobel v Croudace (1899) 16 WN (NSW) 32.
The basic consideration of a Court considering whether to grant an extension of time is whether the strict application of the time limitation will or may occasion injustice: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698.

Conclusion: Extension of Time

There are a number of substantial bases upon which an extension of time should be refused.
First, in the present proceedings the material date, with respect to the interlocutory decision, is 7 February 2019. The summons was filed and served on 10 July 2019, 5 months past the material date. It included an application to extend time pursuant to r 50.3(2). It is not disputed that the summons was filed out of time. The delay is substantial.
Secondly, there is an absence of a satisfactory explanation for the delay. No submissions were developed by the applicant as to the reasons for the 5 month delay, save for a non-specific reliance upon the “explanations” provided in the affidavit evidence of Mr Ekes and Mr Kender, neither of which, in my view, provide a satisfactory explanation for the significant delay in bringing the appeal outside the permissible timeframe of 28 days. I will examine each in turn.
Mr Ekes gave evidence of the inability to file the summons seeking leave to appeal “due to the fact that [his] firm had no funds held on trust… to satisfy the filing fee”. No evidence was given, in that respect, as to whether the applicant itself had available to it sufficient funds to satisfy the filing fee in the months following the material date, nor the steps taken by the applicant to provide those funds to its solicitors at any time prior to July 2019.
As to the evidence of Mr Kender, the respondent correctly, in my view, highlighted para 21 of Mr Kender’s affidavit in which he deposed: “On 10 April 2019 I was reinstated as director of Sales Pond and the burdens that plagued the original proceedings are now resolved. I am now in a position where I can fully commit my time and focus into the current proceedings”. No explanation was provided for the inaction of the applicant from 10 April 2019 to 10 July 2019, even if that explanation was found satisfactory.
The inappropriateness of extending leave in the absence of sufficient reasons for delay is further heightened when para 21 is read in conjunction with para 22, the final paragraph of the affidavit, where it was stated: “I am ready, willing and able to depose defence evidence in reply to the Telegate’s evidence-in-chief and evidence-in-chief on the Sales Pond Cross-Claim”. By that evidence, Mr Kender confirmed his capacity to give evidence but gave no explanation as to the inaction that followed. Thus, even if I were to accept the reasons for delay up until that point, which I do not, there remains a further 3 months, a significant period of delay, for which the applicant provided no explanation for inaction, notwithstanding his apparent capacity to do so.
Thirdly, the lack of the applicant’s prospects of success of appeal should be taken into account. I have earlier expressed a view as to the lack of merits of the three grounds of appeal. I propose to add some observations regarding leave to appeal, or more particularly, why there is a substantial basis to refuse leave to appeal in this case.
Leave to bring an appeal out of time will not ordinarily be granted where the applicant has no prospect of success: Gallo at 459 (McHugh J). Again, I have found the appeal lacks merit.
Further, it is equally probable that leave to appeal, as required by s 40(2)(a) of the Local Court Act, would be refused in light of the principles relevant to leave and the nature of the points raised on appeal, to which I now, in summary, turn.
In Rodi v Gelonesi [2012] NSWCA 424, the NSW Court of Appeal considered (at [24]) the circumstances in which leave to appeal should be granted, in the context of an appeal from the District Court. In refusing leave, Ward JA observed:

[24] There are not exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal but leave should only be granted where there are substantial reasons to allow an appellate review, such as where there is an error of principle which results in substantial injustice.

The relevant principles were recently considered in Ackerman v Morgan [2019] NSWSC 1250 at [53], which I adopt, and are extracted below:

[53] …
(1) An applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at, and that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute: Carolan.
(2) Ordinarily it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar at [46].
(3) The leave requirement is a preliminary procedure “recognised by the legislature as a means of enabling the Court to control in some measure the volume of appellate work requiring its attention”: Coulter at 356 (Mason CJ, Wilson and Brennan JJ). Whilst that was a criminal matter, the statement is clearly applicable to civil, as well as criminal, appellate jurisdiction: Be Financial at [32]–[36] (per Basten JA, with Tobias AJA agreeing).
(4) A requirement of leave to appeal is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought, with the demands they place upon the resources of the Court and the burden they place upon other parties and the delays which they cause to other litigants: Chapmans at [11] per Fitzgerald JA (with whom Mason P and Davies AJA agreed).
(5) An application for leave is not a proceeding in the ordinary course of litigation but a preliminary procedure: Collins v R (1975) 133 CLR 120 at 122; [1975] HCA 60.
(6) Section 58 of the Civil Procedure Act applies and requires the Court to consider “the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction”: s 58(2)(b)(vi). Leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572, such as where there is an error of principle which, if uncorrected, will result in substantial injustice.

The applicant’s challenge is primarily directed to the interlocutory decision of her Honour. The challenge to the substantive decision arose as a consequence of this primary challenge, in that the applicant was contending that the motion for an adjournment should have been granted, thereby avoiding the subsequent final hearing. In that light, it was submitted by the respondent, the applicant’s challenge to the interlocutory decision of Atkinson LCM constituted the “gateway”, through which her Honour’s substantive judgment is impugned. Accordingly, it was correctly submitted, the applicant required, in substance, leave of this Court pursuant to s 40(2)(a) of the Local Court Act.
There is no demonstrative error of principle which resulted in a substantial injustice in this case.
Fourthly, as to the extent of any prejudice that may be suffered by the respondent, if leave was granted to extend the time to appeal, I find the respondent would be prejudiced by granting the application. The respondent has a vested right to retain the judgment pronounced by Atkinson LCM on 7 February 2019, with respect to the interlocutory decision, and to that pronounced on 13 February 2019, with respect to the substantive proceedings. In the absence of a satisfactory explanation for delay, any grant of extension would be prejudicial to the respondent.
In all the circumstances, the applicant has failed to establish that strict compliance with the rules will work an injustice upon it and the application to extend time to bring the appeal should be refused.

ORDERS

The Court makes the following orders:

application for an extension of time is refused; and

the applicant to pay the respondent’s costs of these proceedings as agreed or in default as assessed.

**********

Decision last updated: 10 November 2020

Medium Neutral Citation:	Sales Pond Pty Ltd v Telegate Pty Ltd [2020] NSWSC 1579
Hearing dates:	14 November 2019
Date of orders:	10 November 2020
Decision date:	10 November 2020
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Court makes the following orders: (1) application for an extension of time is refused; and (2) the applicant to pay the respondent’s costs of these proceedings as agreed or in default as assessed.
Catchwords:	APPEAL – appeal from Local Court – interlocutory decision – whether error in the exercise of discretion by refusing an adjournment application – whether error in failure to extend procedure fairness – adequacy of reasons – delay – prejudice – general principles – appeal brought out of time – extension of time refused – costs
Legislation Cited:	Administrative Appeals Tribunal Act 1975 Act (NSW) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ackerman v Morgan [2019] NSWSC 1250 Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Anthony v Chris Savage Pty Ltd [2003] NSWSC 698 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd (Unreported, Supreme Court of Victoria, Full Court, 8 April 1988) Cohen v McWilliam (1995) 38 NSWLR 476 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Dick v Piller [1943] 1 KB 497 Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 EG & H Nominees Pty Ltd v General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 460 Frugtniet v State Bank of New South Wales [1999] NSWCA 458 Gallo v Dawson (1990) 64 ALJR 458 Guinta v Commonwealth Bank of Australia [2008] NSWSC 222 Guinta v Commonwealth Bank of Australia [2008] NSWSC 222 Hamod v State of New South Wales [2011] NSWCA 375 Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 House v The King (1936) 55 CLR 499 Jingalong Pty Ltd v Todd [2014] NSWCA 330 In the Will of Gilbert (1946) 46 SR (NSW) 318 Jackamarra v Krakouer (1998) 195 CLR 516 Jeray v Blue Mountains City Council (No 2) (2010) 180 LGERA 1; [2010] NSWCA 367 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220 Nanschild v Pratt [2011] NSWCA 85 Nominal Defendant v Clancy [2007] NSWCA 349 Norfeld Pty Ltd v Amanda Lee Jones [2014] NSWCA 408 Personnel Concepts WA Pty Ltd v Adam & Ors, t/as Marsdens Law Group [2019] NSWSC 301 Pettitt v Dunkley [1971] 1 NSWLR 376 Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto [2019] NSWSC 1454 Priddle v Fisher & Sons [1968] 1 WLR 1478 Regal Life Insurance Ltd v Pacific Financial Resources Pty Ltd (Unreported, Supreme Court of Victoria, Batt J, 16 November 1994) Rodi v Gelonesi [2012] NSWCA 424 Sackville-West v A-G (1910) 128 LT 265 Sali v SPC Ltd (1993) 116 ALR 625 Scott v Handley [1999] FCA 404 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Spencer v NSW Minister for Climate Change, Environment and Water [2010] NSWCA 75 Squire v Rogers (1979) 27 ALR 330 Thornberry v The Queen (1995) 69 ALJR 777 Tomko v Palasty (No 2) [2007] NSWCA 369 Walker v Walker [1967] 1 All ER 412 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Watson v Watson [1968] 2 NSWR 647; (1968) 70 SR (NSW) 203 White v Grogan [1972] 2 NSWLR 347 Zobel v Croudace (1899) 16 WN (NSW) 32
Category:	Principal judgment
Parties:	Sales Pond Pty Ltd (Applicant) Telegate Pty Ltd (First Respondent) Local Court of New South Wales (Second Respondent)
Representation:	Counsel: D C Eardley, with C Dobbs (Applicant) S Jeliba (First Respondent) Solicitors: Gardner Ekes Lawyers (Applicant) Mills Oakley Lawyers (First Respondent)
File Number(s):	2019/214360
Decision under appeal	Court or tribunal: The Local Court Jurisdiction: Civil Date of Decision: 7 and 13 February 2019 Before: Magistrate Atkinson File Number(s): 2017/379880