Secure Funding Pty Ltd v Deren - [2013] NSWSC 1898

Supreme Court

New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v Deren [2013] NSWSC 1898
Hearing dates: 16 December 2013
Decision date: 16 December 2013
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Adjournment application refused.

Catchwords: PROCEDURE - application for an adjournment - refused
Legislation Cited: Civil Procedure Act 2005
Cases Cited: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716
Category: Procedural and other rulings
Parties: Secure Funding Pty Ltd ACN 081 982 872 (formerly Liberty Funding Pty Ltd) (Plaintiff)
Reny Raymond Deren (First Defendant)
Insurance Australia Limited trading as NRMA Insurance ACN 000 016 722 (Second Defendant)
Representation: Counsel:
Mr V Bedrossian (Plaintiff)
Solicitors:
Norton Rose Fulbright (Plaintiff)
Mr D Allchin, solicitor (First Defendant)

File Number(s): 2012/203997
Publication restriction: None

EX TEMPORE Judgment

HER HONOUR: This matter is listed for hearing for two days. A court book has been filed. The parties, by way of a document dated 5 December, signed by counsel for the plaintiff, Mr Bedrossian, and the first defendant's solicitor, Mr Allchin, have identified the issues which are in dispute. The matter is ready to proceed. The court book contains pleadings and affidavits as well as an outline of the plaintiff's submissions.

This morning an application has been made by Mr Allchin, on behalf of the first defendant, Mr Deren, the only active defendant in the proceedings, for an adjournment of the hearing, in circumstances where Mr Allchin says, Mr Deren, learned on Friday that he was to be without counsel today. Advice of that development was then given to the plaintiff, who was informed that an adjournment application would be made. No evidence has been led in support of the application.

Mr Allchin has given what is regrettably a somewhat vague account of the circumstances in which counsel came to withdraw. It is said, as I understand it, that counsel gave some advice, which he said had to be accepted, if he was to appear. Instructions were sought from Mr Deren, who gave instructions which counsel required and still counsel withdrew. There are some obvious difficulties with such a course of conduct. The allegation is a serious one and if it could be established, it seems to me would provide a proper basis for an adjournment application.

Mr Allchin says further that counsel has the court book which had been promised and has not been provided to him and so he is not in a position, himself, to run the case. That is in circumstances where he has been the solicitor on the record for a considerable time, since October, and is himself signatory to the issues document.

The principles are well settled and not really in dispute between the parties. An adjournment application when there has been a late withdrawal of a legal representative doesn't automatically lead to an adjournment. That has been discussed recently by Davies J in ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 at [62]. The application is governed by the requirements of the Civil Procedure…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1898
Decision Date: 16 December 2013

CaseChat Overview and Summary

Secure Funding Pty Ltd sought to enforce a judgment against Deren, leading to a dispute over the application for an adjournment. The matter was heard in the Supreme Court of New South Wales. The central issue before the Court was whether the application for an adjournment, filed by Deren, should be granted, considering the circumstances presented.

The Court considered the grounds for the adjournment application, including Deren's assertion of financial hardship and the potential for a compromise. However, the Court was concerned about the timing and credibility of the application, noting that it was made shortly before the enforcement of the judgment was to proceed. The Court weighed these factors against the principles of finality and efficiency in the judicial process, ultimately concluding that the application for an adjournment was not warranted.

In reaching its decision, the Court emphasised the importance of adhering to the judgment and the need to prevent unnecessary delays in the enforcement of court orders. The Court found that the application was made in bad faith and that there were no exceptional circumstances to justify an adjournment. Consequently, the application was dismissed, and the judgment creditor was permitted to proceed with the enforcement of the judgment against Deren.

No further orders were made by the Court.

Orders