Saxby Bridge Mortgages v Saxby

[2001] NSWCA 235

CITATION:	SAXBY BRIDGE MORTGAGES v SAXBY [2001] NSWCA 235
FILE NUMBER(S):	CA 40476/00
HEARING DATE(S):	2 July 2001
JUDGMENT DATE:	2 July 2001
PARTIES :	SAXBY BRIDGE MORTGAGES PTY LIMITED & ANOR v SAXBY BRIDGE PTY LIMITED
JUDGMENT OF:	Mason P at 1; Meagher JA at 6; Stein JA at 7

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Registrar Irwin

COUNSEL:	Appellant: J Ireland QC Respondent: Mr Dick
SOLICITORS:	Appellant: Webster O'Halloran & Assoc Respondent: Atanaskovic & Hartnell
CATCHWORDS:	Procedure - application to vacate hearing date (ND)
DECISION:	Application dismissed.

CA 40476/00

SC 1618/99

MASON P

MEAGHER JA

STEIN JA

SAXBY BRIDGE MORTGAGES PTY LTD & Anor v SAXBY BRIDGE PTY LTD

JUDGMENT

1 MASON P: This is an application to review a decision of the Registrar given on 14 May where he declined to vacate a hearing date fixed for 15 August. The matter had been fixed on 12 April 2001, as regards an appeal that had been rather slow in getting to a state of readiness. The Court’s jurisdiction to review the Registrar’s decision is not confined by House v The King principles, nevertheless, the decision of the Registrar is the obvious starting point.

2 When the matter was set down for hearing on 12 April, the Registrar gave a date within the published range which was represented by the legal representatives for each party to be suitable to their leading counsel of choice. Unfortunately, the appellant’s solicitor made a slip in understanding the material which he had. At least that is the position that is now clearly established. When the matter came back before Registrar Irwin on 14 May, the material before him was not nearly that clear. The Registrar recognised, or at least assumed, that there must be some prejudice to the appellant through loss of counsel of choice, who had prepared the written submissions in accordance with the rules. I would give the same recognition, tempered to this degree, by pointing out that incoming counsel will have the benefit of the written submissions prepared by counsel in this matter.

3 Looking at the situation at the present point of time, in the light of all the material now before us, I am not persuaded it is a proper matter to review the Registrar’s decision, or otherwise to vacate the hearing date.

4 There are exceptional cases where unexpected loss of counsel of choice would lead the Court to consider vacating a hearing date even over the opposition of the other side, but they are very exceptional. Nothing in the material put before us today satisfies me that this falls within that situation. It is unfortunate that the misunderstanding led to a date being fixed, but water has flown under the bridge since then. I would reject any suggestion that the respondent to the appeal is acting captiously in seeking to hold on to the date, given the delay and its interests and the fact that the matter was set down properly. It is understandable why it has taken that position.

5 In my view the motion should be dismissed with costs.

6 MEAGHER JA: I agree.

7 STEIN JA: I also agree.

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