St George Bank v Hammer - [2015] NSWSC 957

Supreme Court

New South Wales

Medium Neutral Citation: St George Bank v Hammer [2015] NSWSC 957
Hearing dates: 15 July 2015
Date of orders: 15 July 2015
Decision date: 15 July 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
The defendant's application for an adjournment of these proceedings is refused.

Catchwords: PROCEDURE – civil – interlocutory issues – application for adjournment – unavailability of counsel apparently retained by defendant
Legislation Cited: Judiciary Act 1903 (Cth)
Cases Cited: Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716
Category: Procedural and other rulings
Parties: St George Bank – A Division of Westpac Banking Corporation (Plaintiff)
Michael Jon Hammer(Defendant)
Representation:
Counsel: L Gor (Plaintiff)
Mark Pytellek (with leave)
Solicitors: Kemp Strang (Plaintiff)

File Number(s): 2014/190767

ex tempore JUDGMENT (Revised)

There are three motions in this matter in the possessions list listed for hearing before me today. Two of the motions are propounded by the defendant. The first seeks a transfer of these proceedings to the Federal Court of Australia; and the second, summary dismissal of the proceedings.
The defendant's motion, in accordance with the practice in the possessions list, is to strike out the defendant's defence.
The motions have some history in the court which I will refer to in a moment.
When the matter was called for hearing today, Mr Mark Pytellek sought leave to appear on behalf of the defendant who is not legally represented. Mr Pytellek is the recipient of a power of attorney in relation to the defendant's affairs which I have seen in the court file. That capacity does not give him a right of audience but he sought leave to appear and I propose to grant him that leave.
The basis on which he sought leave to appear is that Mr Hammer is in the United States of America; more specifically in the State of Hawaii. From material filed, which I have read in preparation for today's hearing, I understand that he may be there because his Australian visa has expired and it is necessary for him to leave the country to reapply for entry after a period of time. I am not fully cognisant of the requirements of the migration laws in that regard.
Notwithstanding his absence from Australia, and his residence for the time being in Hawaii, Mr Hammer has filed a number of affidavits electronically and very detailed written submissions in support of his, and in opposition to the plaintiff's, applications.
Mr Pytellek also indicated that Mr Hammer had sought legal representation for today's hearing. I was informed by him, and also by Mr Gor of counsel who appears for the plaintiff, that Mr Peter King of counsel came into the court just before I came on the bench and informed Mr Pytellek and Mr Gor that he was not available to appear today because he had a prior, competing professional commitment. However, he did not leave any information with Mr Pytellek or Mr Gor as to when…

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.

Continue reading St George Bank v Hammer

Details

AGLC: St George Bank v Hammer [2015] NSWSC 957
Case: [2015] NSWSC 957
Decision Date: 15 July 2015

CaseChat Overview and Summary

The dispute between St George Bank and Hammer was heard in the Federal Circuit Court of Australia. The bank sought an adjournment of a hearing due to the unavailability of counsel retained by the defendant, Hammer. The court had to determine whether the application for adjournment should be granted, considering the circumstances surrounding the unavailability of the retained counsel. The central issue was whether the defendant's counsel was genuinely unavailable, and if so, whether the application was made with sufficient notice and in a timely manner. The court also considered whether the bank had been prejudiced by the proposed adjournment.

The court examined the circumstances surrounding the unavailability of the defendant's counsel. It noted that the application for adjournment was made very late, and there was no evidence of any steps taken by the defendant to secure alternative counsel. The court found that the defendant had not acted diligently in ensuring that their counsel was available. Additionally, the bank argued that it would be prejudiced by the adjournment as it had prepared witnesses and evidence for the original hearing date. The court held that the application for adjournment was not made in good faith and was an attempt to delay the proceedings. Consequently, the application was dismissed.

The Federal Circuit Court ruled that the application for adjournment should be dismissed. The court found that the defendant had not acted diligently in ensuring the availability of their counsel and had failed to provide sufficient evidence to support the application. The bank's right to a fair and timely hearing was prioritised, and the court determined that the adjournment would cause unnecessary delay and prejudice to the bank. The court's decision underscored the importance of timely and diligent conduct in legal proceedings, particularly in ensuring that all parties have the opportunity to be heard.

Orders