Short v Crawley

[2004] NSWSC 1012

CITATION:	Short v Crawley [2004] NSWSC 1012
HEARING DATE(S):	21 October 2004
JUDGMENT DATE:	21 October 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Fixture of receivership application vacated.
CATCHWORDS:	PROCEDURE [32] - Courts and judges generally - Courts - Adjournment - Discretion of Court - Additional grounds recently brought forward to be relied on on hearing of receivership application.
PARTIES :	Roslyn Short as Executrix of the Estate of the Late Warwick Gordon Short (P1 & 1XD) Nabatu Pty Limited (P2 & 2XD) Christopher Crawley (D1 & 3XC) Marsico Holdings Pty Limited (D2 & 1 XC) J & J O'Brien Pty Limited (D3 & 2XC) Vensel Pty Limited (4D) Trudale Pty Limited (5D & 4 XC) Judith Kiralyhidi Crawley (6D) Aldonet Pty Limited (7D) Springsley Holdings Pty Limited (8D) Gladewood Enterprises Pty Limited (9D) Athann Pty Limited (10D)
FILE NUMBER(S):	SC 2824/98
COUNSEL:	I M Jackman SC and T M Thawley (Ps & XDs) A J L Bannon SC and D B Studdy (1-6Ds & XCs) J M Miller (Rocks Catering P/L & Kavia Holdings P/L) P M Wood & G K Rich (7-9Ds) No appearance (10D)
SOLICITORS:	Kemp Strang (Ps & XDs) Blake Dawson Waldron (1-6Ds & XCs) James Tuite & Associates (7-9Ds) A Davis, Director (10D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 21 OCTOBER 2004

2824/98 ROSLYN SHORT as Executrix of the Estate of the Late WARRICK GORDON SHORT & ANOR v CHRISTOPHER CRAWLEY & 9 ORS

JUDGMENT

1 HIS HONOUR: The decision I have come to in relation to the matter that is primarily for decision today is that I should vacate the hearing of the receivership application in this case fixed for five days commencing on 1 November 2004.

2 Mr Jackman, of Senior Counsel for the plaintiffs, has brought forward additional grounds in very recent times on which he intends to rely in the receivership application. I gave directions earlier this week which led to the definition of those grounds and of evidence sought to be called in relation to them on the hearing of the application.

3 There have been problems in this case, not solely on the plaintiffs' part, of the changing shape of various matters in the proceedings. That extends to matters to be relied on by the plaintiffs in the receivership application. But I do not think it is for the Court - and I have said this in the past - to prevent the plaintiff from making that application, even though at a late stage of the proceedings, or to limit the matters by reference to which the plaintiffs seek to support the application.

4 Suggestion was made early in the course of argument before me today that a further expansion of the matters to be put in support of the receivership application could possibly lead to vacation of the fixture for the hearing in November of that application. Mr Jackman has, no doubt advisedly, persisted with the course of expanding the matters to be put on the receivership application. Mr Bannon, of Senior Counsel for the first to sixth defendants, has solemnly and affirmatively assured the Court that certain of the new issues he could and would not be in a position to deal with on 1 November and has asked that the fixture for hearing commencing on that date be vacated. That application has been joined in by Mr P M Wood, of counsel for the seventh to ninth defendants, who has equally directly informed the Court that he and his clients could not be ready to deal with the application on the expanded basis on that day. There is one exception to this; Mr Bannon could be ready to deal with the hot dog issue on that day and his application is not made by reference to the hot dog issue, to which Mr Wood has not adverted at all.

5 Mr Jackman has submitted that in respect of the other two new matters the issues are simple. I have been associated with the management of this case for some time and, to my observation, nothing about it is very simple. Quite apart from that general observation, in my view Mr Jackman's statement of what is involved in the two issues causing the difficulty is a gross oversimplification of those issues, even as they appear to me at this early stage of their development, and bearing in mind Mr Jackman's own written submissions upon the questions. To take but one example, his outline of supplementary submissions relating to the tax returns issue takes some 20 pages.

6 Quite apart from what views or impression I may be able to form on the incomplete material before me, I have the solemn statement to the Court by two very senior members of the Bar, well versed in commercial matters of the sort we are now dealing with, that they see themselves and their clients as unable to deal with these newly raised submissions in the matter. The Court must give their assurances very considerable weight. However, as I say, the effect of these assurances is to the same effect as what assessment I can make on the material before me of the nature of the issues involved.

7 I do not propose to have the receivership application proceed in fits and starts. The appropriate course appears to me, as I have already announced, to vacate the fixture for the hearing of the receivership application in November. I realise that this means the postponement to next year of the hearing of the application and that the allegations are of substantial mismanagement of a number of companies. That, however, is not of the same significance in this case, with its long history and background and the lateness of the stage in the proceedings at which the application is made, as it would have in many cases. I have, of course, given these matters due consideration in exercising my discretion to vacate the fixture.

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Last Modified: 12/06/2004