Sipad Holding v Popovic, Nikola

[1995] FCA 895

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA                 )
NEW SOUTH WALES DISTRICT REGISTRY       )          No. NG3192 of 1995
GENERAL DIVISION  )

IN THE MATTER OF
SIDEX AUSTRALIA PTY LIMITED
(RECEIVER AND MANAGER APPOINTED)
(A.C.N. 000 828 606)

BETWEEN:SIPAD HOLDING d.d.p.o.

First Applicant

PERO VLADIC
  Second Applicant

AND:NIKOLA POPOVIC

First Respondent

DRAGAN KARAC

Second Respondent

MILAN JOVICIC

Third Respondent

JOSEPH JOHN GILLES

Fourth Respondent

AUSTRALIA FURNITURE PTY LIMITED

Fifth Respondent

SIDEX AUSTRALIA PTY LIMITED

(RECEIVER AND MANAGER APPOINTED)

Sixth Respondent

SIPAD EXPORT IMPORT d.d.p.o.

Seventh Respondent

CORAM:    Lehane J
PLACE:     Sydney
DATE:       10 October 1995

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:  The first, second and third respondents have sought an adjournment of this matter for what amounts to an indefinite period but which may perhaps, it has been suggested, be six to eight months.  The grounds upon which they put their application are in broad terms the suggested injustice that will arise for them if the matter proceeds to a hearing now. 

That injustice, it is said, arises from several factors.  One is that those respondents are now unrepresented and are in the difficult position of having, without the benefit of legal advice or assistance, to conduct on their own what must be conceded to be difficult and complex proceedings.

A second ground giving rise to the alleged injustice is said to be that the continuation of hostilities in the former Yugoslavia makes it impossible for those respondents to obtain either, I think, the information or the funds that they require in order to conduct the case properly.  The court begins I think, in a case like this, with a strong predisposition to grant an adjournment to a party who is suddenly left without legal representation to fight a difficult case on his own. 

In this case, however, Mr Douglas has argued strongly that there are grounds which ought to lead me to the conclusion that no adjournment should be granted and indeed I have referred to matters during the course of discussion this morning which might suggest that this is a case where it would not, in the interests of justice, be convenient or proper to grant an adjournment.

The grounds advanced by Mr Douglas are principally that a number of witnesses are available in Paris to give evidence by video conference this afternoon and tomorrow, that this fact and the difficulty entailed in arranging it have been known for some time to the respondents and that it would be unreasonable on that account to grant an adjournment at this late stage.  Secondly, Mr Douglas points out that this matter was expedited with the consent of the respondents. 

The hearing was set for 9 October with the consent of the first three respondents.  When the matter came before Beaumont J on 21 September, when discussions had apparently already commenced which were likely to lead to the termination of the retainer of the respondents' former solicitors, his Honour was not informed, neither for that matter were the other parties, that those discussions were in progress or that the termination of the retainer was likely.

Additionally, Mr Douglas has referred to matters going beyond the interests of the two parties to the litigation: matters such as the availability of time in the courts' lists. Certainly it is true, I believe, that it would be almost impossible to find a period of a week within what remains of this year and in any event that, I am told by Mr Popovic, would not suit the purposes of the respondents who need a considerably longer adjournment. 

By an interlocutory order of this Court a receiver of Sidex Australia Pty Ltd was appointed some months ago.  The receivership continues and apparently must continue until this matter can be resolved.  That also, I think, is a factor pointing towards an earlier rather than a later resolution of this case.

Finally, I think it should be said that the applicants have from the outset of this case made reasonably clear, by affidavit evidence, the basis on which they claim that the company apparently known in English as Sipad Holding is the principal holder of shares in Sidex Australia Pty Limited.

The contentions and evidence put forward by the applicants on that topic have not, apparently up to now, been challenged by the respondents on any serious basis.  For all those reasons, despite the difficulties that this must cause for the unrepresented respondents and the sympathy one naturally feels for them in that difficulty, I believe the adjournment must be refused and I refuse it.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  9 November 1995

Heard:  10 October 1995

Place:                   Sydney

Decision:              10 October 1995

Appearances:                  Mr F M Douglas QC and Mr J E Sexton of counsel instructed by Mallesons Stephen Jaques appeared for the applicant.

The first and third respondents appeared in person.

Mr V R Gray of counsel instructed by R F Giles Payne & Co appeared for the fourth respondent.

Mr S G Finch of counsel instructed by Phillips Fox appeared for the sixth respondent.