Steven Murabito t/as Propertylink Group v Abourjaily

[2017] NSWSC 941

Supreme Court

New South Wales

Medium Neutral Citation:

Steven Murabito t/as Propertylink Group v Abourjaily [2017] NSWSC 941

Hearing dates:

12 July 2017

Date of orders:

18 July 2017

Decision date:

18 July 2017

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The appeal is dismissed.

 

(2) The decision of her Honour Magistrate Keogh dated 24 November 2016 is affirmed.

 

(3) The summons dated 22 December 2016 is dismissed.

 (4) The plaintiffs are to pay the defendants’ costs on an ordinary basis.

Catchwords:

PRACTICE AND PROCEDURE – Local Court appeal – leave to file a further amended defence – appeal dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57 58, 66
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2007] HCA 27
Corporate Affairs Commission v Solomon [1989] NSWCA, unreported 1 November 1989
Hamod v State of New South Wales [2011] NSWCA 375
House v The King (1936) 55 CLR 499
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Reisner v Bratt [2004] NSWCA 22
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Titan v Babic (1994) 126 ALR 455

Category:

Principal judgment

Parties:

Steven Murabito t/as Propertylink Group (First Plaintiff)
Steven Murabito (Second Plaintiff)
Adel Abourjaily (First Defendant)
Emilia Haddad-Abourjaily (Second Defendant)
Giovanni Enzo Boggio Alania (Third Defendant)
Fiona Jane Boggio Alania (Fourth Defendant)
Patricia Ikonomou (Fifth Defendant)
Mohsen Raoufi (Sixth Defendant)
Graham Robert Benjamin (Seventh Defendant)
Christine Margaret Anne Benjamin (Eighth Defendant)
Peter Garret Holt (Ninth Defendant)
Cassandra Kemmie O’Neill (Tenth Defendant)
David Michael Timewell (Eleventh Defendant)
Claire Tracy Timewell (Twelfth Defendant)

Representation:

Counsel:
H J Wheeldon (Plaintiffs)

  Solicitors:
David H Cohen & Co (Plaintiffs)
Ms P Ikonomou (Fifth Defendant in person)

File Number(s):

2016/385260

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court, Downing Centre

Jurisdiction:

General

Date of Decision:

24 November 2016

Before:

Keogh LCM

File Number(s):

2016/262173

Judgment

1. HER HONOUR: By summons filed 22 December 2016, the plaintiffs seek to appeal the whole of the decision of her Honour Magistrate Keogh dated 24 November 2016. The plaintiff seek orders firstly, that the appeal be allowed; secondly, that the judgment of the Local Court be set aside; and finally, that the first and second plaintiffs be granted leave to file a further amended defence or that the Local Court be ordered to lawfully consider granting such leave.

2. The first plaintiff is Steven Murabito t/as Propertylink Group. The second plaintiff is Steven Murabito. Steven Murabito is a director and licensee of Propertylink Group Pty Ltd. The first defendant is Adel Abourjaily. The second defendant is Emilia Haddad-Abourjaily. The third defendant is Giovanni Enzo Boggio Alania. The fourth defendant is Fiona Jane Boggio Alania. The fifth defendant is Patricia Ikonomou. The sixth defendant is Mohsen Raoufi. The seventh defendant is Graham Robert Benjamin. The eighth defendant is Christine Margaret Anne. The ninth defendant is Peter Garret Holt. The tenth defendant is Cassandra Kemmie O’Neill. The eleventh defendant is David Michael Timewell. The twelfth defendant is Claire Tracy Timewell. The first to twelfth defendants were the plaintiffs in the Local Court proceedings. (I shall refer to them as the defendants). The plaintiffs in the Local Court are the defendants in this Court. Likewise, the defendants in the Local Court are the plaintiffs in this Court.

3. At the hearing of this appeal the plaintiffs were legally represented. The defendants were not as they did not have the funds to employ legal representation. With the consent of the other defendants Ms Patricia Ikonomou represented them.

4. The plaintiffs relied upon the affidavits of Steven Samuel Murabito dated 26 May 2017. As there are three affidavits by him dated 26 May 2017, I have marked the one relied upon as MFI - 1. At the outset of the trial, copies of the pleadings in the Local Court, namely the statement of claim filed 31 August 2016 (Ex A), the first defendant’s defence filed 28 September 2016, the first defendant’s amended defence filed 1 November 2016, the first defendant’s further amended defence dated 2 November 2016 (Ex B) and a copy of the defence of the second defendant filed 1 November 2016 (Ex C) were obtained. The parties did not have a copy of the notice of motion seeking summary that was filed in the Local Court so it is not before this Court.

5. On 24 November 2016, the Magistrate granted summary judgment in favour of the plaintiffs in the amount of $45,000 plus filing fees, service fees and solicitor’s fees on filing. The Magistrate also made a costs order that the pay the plaintiffs’ costs on an indemnity basis as agreed or assessed.

Grounds of appeal

6. The grounds of appeal are that:

“1   The First and Second plaintiffs made an oral application, in Court, for leave to file a further amended defence. Mr Murabito proffered to the Court a copy of the proposed Further Amended Defence. The Magistrate refused to the application and stated words to the effect of “You’ve had enough time. I’m not accepting it.”

2   The Magistrate erred in law (denial of procedural fairness) in failing to consider the proposed Further Amended Defence.

3   The Magistrate’s words and conduct would have raised a reasonable apprehension of bias in a lay observer in the Court.”

7. It is debatable whether leave to appeal is required as the proceedings have been summarily dismissed and are therefore now at an end. In these circumstances, I grant leave to appeal should it be required.

Prior proceedings in this Court

8. In proceedings 2015/174134, the plaintiffs Adel Abourjaily, Emilia Haddad-Abourjaily, Giovanni Enzo Boggio Alania, Fiona Jane Boggio Alania, Patricia Ikonomou, Mohsen Raoufi, Graham Robert Benjamin, Christine Margaret Anne, Peter Garret Holt, Cassandra Kemmie O’Neill, David Michael Timewell and Claire Tracy Timewell commenced proceedings against Parkview Estate Ltd. On 28 April 2016, Darke J made an order that Parkview Estate pay the costs of the notice of motion on an indemnity basis. (Tab J, p 51 Order 8 – Defendants’ Court Book).

The pleadings in the Local Court

9. By statement of claim (“S/C”) filed 31 August 2016, the defendants sought to enforce payment of a deed arising from an indemnity costs order made in the Supreme Court in proceedings 2015/174134.

10. Paragraphs [4] to [9] of the S/C plead:

“4 On 18 July 2016 the plaintiffs and the first and second defendant entered into a Deed of Agreement in settlement of costs orders made by the Supreme Court of NSW in proceedings 2015/174134 (the Deed, forming Annexure A to this Statement of Claim), by which the first and second defendant agreed to make payments totalling $45,000 to the plaintiffs.

Particulars

(a) The Deed is in writing.

(b) Deed of Release dated 18 July 2016 between the plaintiffs and the first and second defendant.

5 It is a term of the Deed that the first and second defendant were to pay to the plaintiffs the sum of $45,000 by three instalments as follows:

(a) $15,000 on or before 27 July 2016;

(b) $15,000 on or before 10 August 2016; and

(c) $15,000 on or before 24 August 2016.

Particulars

Clause 2 of the Deed

6. In breach of the term pleaded at paragraph 5 above, the first and second defendant did not make any of the instalment payments.

7 The amount of $45,000 is due and payable under the Deed.

8 The first and second defendants have not made any payments to the plaintiffs under the Deed.

9 By reason of the first and second defendant’s breach, the plaintiffs have suffered loss and damage.”

11. In the defence of the first defendant filed 28 September 2016, the first defendant admits paragraphs [4] and [5] of the S/C. At [6] of the defence, the first defendant denies that it is in breach of the deed but admitted it did not make any instalment payments. This is similar to the pleading in the defence of the second defendant.

12. At [12] to [18] the first defendant’s defence pleads:

“12 On the basis that the Plaintiffs had incurred legal costs of the Motions in the sum of $54,632.35, the First Defendant entered into a Deed with the Plaintiffs on 18 July 2016 to settle the First Defendant’s liability to pay legal costs of the Motions allegedly incurred by the Plaintiffs.

13 After entry into the Deed, the First Defendant became aware that the Plaintiffs had engaged their legal representatives in respect to the Motions on a pro bono basis, and had not incurred legal costs of the Motions.

14 The First Defendant entered into the Deed, being a written contract, under a serious mistake or misapprehension about a fundamental term or terms of the Deed.

15 The Plaintiffs were aware, or had a reason to be aware, that circumstances existed that indicated that the First Defendant was entering into the Deed under a serious mistake or misapprehension, being that the First Defendant was mistaken that the Plaintiffs had incurred legal costs of the Motions in the sum of $54,632.35.

16 The Plaintiffs, by not informing the First Defendant or the Court that they had engaged their legal representatives on a pro bono basis, deliberately set out to ensure that the First Defendant did not become aware of the existence of its mistake or misapprehension.

17 In the premises, it would be unconscionable for the Plaintiffs to enforce the Deed against the First Defendant.

18 The Deed ought to be rescinded.”

13. In the amended defence (“AD”) filed 1 November 2016, the first defendant does not admit S/C [5]. At AD [6] it denies the term of the deed and admits that both the first and second defendants did not make any instalment payments under the deed. At AD [9] the first defendant denies paragraph [9] of the S/C. Paragraphs [10] to [18] of the earlier defence have been deleted.

14. In the further amended defence dated 2 November 2016 (the latest filed version of the defence), the first defendant does not actually plead anything.

15. The principles according to which this court is to decide whether the Magistrate’s discretionary decisions to refuse both the first application for an adjournment; and secondly, leave to the first defendant to file a further amended defence constitutes an error of law, are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. It is, I think, useful to re-state them. They are as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

The Magistrate’s decision

16. The second defendant applied for an adjournment on behalf of the first defendant and himself at the hearing in the Local Court. He stated (T1.31-35):

“Your Honour I seek leave today I’m legally unrepresented and my solicitor has taken aback by some illness and he’s had to withdraw from the proceedings. So I need to instruct a new solicitor. I’ve done my best to prepare an amended defence which I’d like to seek leave to file today.”

17. The second defendant had served a copy of his affidavit dated 23 November 2016 on the plaintiffs’ solicitor Mr Jake Marshall, but had not served him with a copy of the amended defence. The contents of the second defendant’s affidavit does not address why an adjournment should have be granted. Mr Marshall informed the Magistrate that there had been multiple amended defences filed in the proceedings and that none of them actually contain a valid defence. The second defendant replied that the plaintiffs’ solicitor had contacted him about settlement and led him to believe that the plaintiffs were going to settle. (T2.4-9).

18. Her Honour stated at T3.20-28:

“So we’ll start from the motion is proceeding. So Mr Marshall it’s your motion for summary judgment and the summary judgment is on the basis of the pleadings as they currently stand which includes the Statement of Claim and now the amended defences that have been filed by the first and second defendant and the initial defence as I understand it has now been superseded by these two documents that appear to have been filed as a result of Registrar McTigue’s order allowing leave to the defendants to file further amended defences and they were filed on 1 November. So I’m dealing with those pleadings and the original Statement of Claim, is that right?”

19. The second defendant stated at T3.43-49:

“Well your Honour of late my legal representative became dreadfully ill and he’s had to - he was forced to drop out of these proceedings. So I’m here defending myself unrepresented and the company and I seek leave here today to file a further amended defence and I seek 28 days. I have a new legal representative and he needs for formalise my defence and the company's defence. If I may can I take you through the original deed which I’ve –”

20. Her Honour observed that there was no notice of motion before her seeking to file a further amended defence. (T4.21-24).

21. Her Honour explained at T6.25-29:

“Well you’ve got to tell me because you’re asking for an adjournment and you're wanting to explain to me the difficulties that you’re in and for me to accept that they’re reasonable you've got to tell me when you got the Notice of Motion [seeking summary judgment] and why it is therefore unfair to proceed on the matter now.”

22. The second defendant responded that he received the notice of motion seeking summary judgment (served by way of substituted service) in late November 2016. He then conceded that it was in “Late or mid November” as he was away from Sydney until 15 November 2016 and he was expecting his solicitor Mr Bouzanis of Hodge Lawyers to come back from illness. (T5-T7). However, on 14 October 2016 that solicitor had filed a notice of discontinuance. The second defendant then stated that he had finally got in contact with a local solicitor who could not make it to court on that day. Finally, he made an allegation that Mr Marshall had made a misleading statement. (T8.42-50).

23. Then Mr Marshall on behalf of the plaintiffs submitted (T9.23-33) that:

“My only submission is they’ve been on notice since at least 1 November when Mr Murabito and Propertylink filed their defences in the matter. This is the first we’ve heard of this application. We’ve reminded them in correspondence since filing their motion through to today if they are wanting to rely on any evidence they need to serve it on us. We’ve reminded them of the date. I go back to Mr Murabito’s submission about his solicitor falling ill. That Notice of Discontinuance was filed on 14 October. He’s had plenty of time to obtain new legal representation and we’ve been requesting in various correspondences to them the basis for their assertion that they have a defence to the claim. We still haven't received that and the first contact we received from them was yesterday.”

24. In refusing the adjournment application the Magistrate in her ex tempore decision stated at T11.14-47:

“HER HONOUR: In the circumstances I refuse the application for adjournment because the defendant has had notice of this Notice of Motion although it is unclear as to when it actually came to his attention prior to 2 November, it was definitely before the court on 2 November when Mr McTigue then adjourned these proceedings to 24 November so to this date and Mr Murabito was in fact in court and he appeared in person and he appeared as the Director for the first defendant and he is fact the second defendant. And Mr McTigue the Registrar gave leave for an amended defence then to be filed and at that stage what was on the court file was a defence that had been settled as I understand it by the defendant’s previous solicitors.

SECOND DEFENDANT: No I disagree with that sorry.

HER HONOUR: Well that had been prepared at least on instructions if one was to accept all of the email correspondence and then there was certain things that past between the legal representatives in relation to what was being claimed and what could be claimed, there was correspondence that indicated that certain things would no longer be relied upon. But be that as it may what ended up happening on 14 October was that Owen Hodge Lawyers in fact filed a notice ceasing to act and the intention of ceasing to act had clearly been provided to their client or its clients and by the time the matter came before the court on 2 November the defendants were unrepresented and that notice of ceasing to act had come into effect. So the defendants were advised by that that they had to seek their own representation. So at least since that date there has been an opportunity to respond to this Notice of Motion.

Mr Murabito today asks for an adjournment. He does not explain in fact why he has not got representation now or in fact what difficulties he has had in responding to the Notice of Motion other than he is self-represented, he indicated that Mr Hodge had been ill and he had placed the matters back in his hands but then corrected that and said that in fact he has another firm of solicitors who just could not make it here today. But that does not explain why there has been a complete failure to respond to the Notice of Motion. So in the circumstances the application for adjournment is not granted.”

The legal principles in relation to adjournments

25. Counsel for the plaintiff referred to ss 56, 57 58 and 66 of the Civil Procedure Act2005 (NSW) that relevantly read:

“56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

…

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

…

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could Have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

66 Adjournment of proceedings

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

(2)....”

26. Counsel for the plaintiffs referred to Corporate Affairs Commission v Solomon [1989] NSWCA, unreported 1 November 1989 (“Solomon”); Titan v Babic (1994) 126 ALR 455; and Reisner v Bratt [2004] NSWCA 22. These cases were all decided before the introduction of the Civil Procedure Act. While the principles remain the same, the considerations set out in ss 56 to 58 of the Civil Procedure Act are now also applicable.

27. In particular, counsel for the plaintiffs submitted that the Magistrate should have adopted the approach set out in Solomon. In Solomon, the primary judge had refused an adjournment. On appeal Mahoney JA was satisfied that there was nothing before the court to indicate that the grounds of appeal or complaints had any or the appropriate likelihood of success and that no evidence had been put before the court in that regard.

28. Mahoney JA stated:

“I am not satisfied that any further notice of appeal apt to be drafted by Mr Solomon would be likely to be in appropriate form: the Commission is entitled to be protected against the filing of further documents in in appropriate form. However, it may well be that, if appropriate instructions were able to be given to competent counsel, a notice of appeal could be drafted formally putting in issue, and in proper form, matter on law or fact on which Young J acted.”

29. Mahoney JA then made the following order:

“3. That such leave be subject to the condition that any notice of appeal to be filed pursuant to such leave be first submitted to a Judge of the Court of Appeal for perusal by him and that such notice of appeal be not accepted for filing unless in the opinion of the Judge of Appeal it is in a form appropriate for that purpose.”

30. In other words, conditional leave was granted for the appellant to file a notice of appeal subject to being first submitted to a judge of the Court of Appeal and it cannot be accepted for filing unless the judge is of the opinion that it is appropriate.

31. In Hamod v State of New South Wales [2011] NSWCA 375, the Court of Appeal, Beazley JA, (with Giles and Whealy JJA agreeing), reviewed the principles to be considered in deciding whether an adjournment should be granted. The trial judge had refused an adjournment by a self-represented litigant part way through the hearing. The Court of Appeal referred to AonRisk Services Australia Ltd v Australian National University [2007] HCA 27 and stated “In Aon, the Court was dealing with the rules of the Supreme Court of the ACT”, they are similar to those of the Supreme Court of New South Wales.

32. In Hamod, Beazley JA stated at [139] to [145]:

139 The considerations relevant to the determination of interlocutory applications were recently considered by the High Court in Aon Risk Services Australia Ltd v Australian National University . In Aon Risk Services Australia Ltd, the Court was dealing with the rules of court of the Supreme Court of the ACT. Those rules are relevantly similar to the Civil Procedure Act, s 56 ff. Although the application in question in that case was an application to amend pleadings, the High Court addressed the concerns of case management more generally, noting the impact that substantial delay and wasted costs has on parties, the court and other litigants. Relevant to the application in this case are the comments of French CJ, at [5]:

“[T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.”

140 His Honour further stated, at [30]:

“Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.”

141 A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act, s 56. What constitutes a “just resolution” is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation. In Aon Risk Services Australia Ltd, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [98], stated:

“The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.”

142 In his submissions to this Court, Mr Hamod made specific reference to these provisions, as well as to s 66. He submitted that his Honour was obliged to apply s 66, subject to s 56, and to then make his determination according to the dictates of justice as required by ss 57-58. Section 66 provides, relevantly, that the court may at any time, by order, adjourn proceedings.

143 There is nothing new in this provision. It merely confers upon the court a discretion to grant an adjournment. The court has always had that power, both in the exercise of its inherent jurisdiction and pursuant to the Supreme Court Act 1970. Nor is s 56 a new concept. Rather, it is the statutory embodiment of jurisprudence that had already gained prominence in the case law. Issues of delay, costs and inefficiency have led to active case management in the courts as a recognised feature of the administration of justice for at least the last two decades.

144 Mr Hamod also relied upon ss 57 and 58. Section 57 provides that in furthering the overriding purpose of a just, quick and cheap resolution of case, the court is required to manage cases having regard, inter alia, to “the just determination of the proceedings”: s 57(a). Section 58 provides that in making any order or direction the court is to “seek to act” in accordance with the dictates of justice, including having regard to the “degree of injustice that would be suffered by the respective parties as a consequence of any order or direction”.

145 These provisions have been the subject of frequent judicial comment: Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2005] NSWSC 1339; Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Bi v Mourad [2010] NSWCA 17 at [47]; Richards v Cornford (No 3) [2010] NSWCA 134; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. In McMahon v John Fairfax Publications Allsop P, at [26], referred to the case management provisions ss 56-60 as follows:

“The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the ‘just, quick and cheap resolution of the real issues in the proceedings’.”

33. In this appeal, counsel for the plaintiff made oral submissions that the requirements of case management in the circumstances, particularly when dealing with a self represented litigant, require more than just consideration to the form and the procedural technicalities, but rather the substance of the argument. (T21.6-27). He submitted that it would have been appropriate, in the circumstances, for her Honour to have granted a further brief adjournment in order for Mr Murabito to be able to have one last chance to put on a proper defence. He contended that there is nothing in the transcript to indicate wanton or repeated or really significant non compliance by Mr Murabito with the orders of the court. Finally, he submitted that there was no submission made by Mr Marshall, for the plaintiffs below, that there would be any irreparable prejudice that would flow from a brief adjournment nor any consideration to the question of whether or not costs would be sufficient to deal with any adjournment.

34. The defendants had already filed three versions of their defence, the first original defence being filed on 28 September 2016, when the defendants had the benefit of legal representation. The second defendant had also filed a defence. The defendants had more than adequate opportunities to file their defences. The defendants’ reasons for seeking an adjournment were set out by the Magistrate. Her Honour referred to the fact that Owen Hodge Lawyers filed a notice of ceasing to act and since 2 November 2016, when the matter came before the Registrar, the defendants had had an opportunity to respond to the notice of motion for summary judgment.

35. Her Honour pointed out that the second defendant did not explain why he had not obtained representation in the meantime nor what difficulties he had had experienced in responding to the notice of motion other than he was self represented. After indicating that his solicitor Mr Bouzanis had been ill, the second defendant then clarified saying that he had in fact another firm of solicitors who just could not make it to court on that day. However, her Honour stated that this did not explain why there had been a complete failure to respond to the notice of motion.

36. I accept that ordering costs against the party seeking an adjournment as well as whether prejudice is caused to the other party are factors that may be taken into account in deciding whether to exercise the discretion to grant an adjournment. These proceedings concern the enforcement of a deed where upon all versions of the defences, the instalments have not been paid. The defendants’ explanations for not filing the defence they wanted to rely upon were unconvincing and not supported by any evidence. The Magistrate dealt with the substance of the defendants’ submissions and did not just consider the procedural requirements. The plaintiffs had been deprived of the funds payable under the deed for some time. In my view the Magistrate took into account the relevant matters in order to determine the dictates of justice when refusing to grant an adjournment and refusing to allow the defendants a further opportunity to file a second further amended defence. This ground of appeal fails.

Summary judgment

37. The submission in relation to the adjournment (set out earlier in this judgment) was also made in deciding whether or not to take the extreme step of effectively bringing the proceedings to an end and granting summary judgment.

38. Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court.

39. UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.

40. UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1).

41. In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118.

“3 In Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application:

(a)   On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).

(b)   The critical question can be expressed as whether there is more than a “fanciful” prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.

(c)   Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]).”

42. In the Local Court Mr Marshall, the solicitor for the plaintiffs moved on their motion for summary judgment dated 31 October 2016 and relied upon his supporting affidavit dated 23 November 2016 (his earlier affidavit). He outlined the pleadings in the defences (set out earlier in this judgment).

43. In so far as summary judgment is concerned, the Magistrate at (T13.47-50; T14.1-6) stated:

“HER HONOUR: Well Mr Murabito why shouldn’t I enter summary judgment then in these proceedings on the basis that Mr Marshall has submitted that the deed is admitted, the terms of the deed are before the court and the defence admits non-payment and there’s nothing else raised in your defence that could possibly be relied upon to counter if you like the existence of the deed, the foundation of it in relation to an indemnity costs order made at the Supreme Court and that there’s been a default in relation to it that means that that amount is now payable.

44. The Magistrate allowed the second defendant to make submissions as to essentially the matters raised in the defendants’ second proposed second further amended defence that she had not granted leave to be filed.

45. On this topic the following exchanges took place (T14-T17):

SECOND DEFENDANT: If I can talk about the plaintiff Adel Abourjaily, Emilia Haddad-Abourjaily, I never had any dealings with this plaintiff. I haven’t sold them property, I haven’t taken any money from them. I’ve never had any dealings with this plaintiff. Adel Abourjaily, Emilia Haddad-Abourjaily they are listed as the plaintiff or one of the plaintiffs in these proceedings. Now we have desperately requested from the plaintiffs and their representatives Leverage Solicitors for receipts. Now they have tendered some receipts and the receipts that they have tendered to us do not match the figure that I have agreed in the deed. Now the deed states a figure for the costs of the motion by the plaintiffs and those receipts don't add up. Abourjaily is a plaintiff which I should never have agreed to sign a deed with.

…

SECOND DEFENDANT: I signed it in error because when I looked at the material through Propertylink I assumed that we had been dealing with Abourjaily, Adel Haddad-Abourjaily, Emilia Haddad-Abourjaily, I’ve never dealt with these people, I can demonstrate all of that.

HER HONOUR: You were legally represented by Owen Hodge Lawyers at the Supreme Court.

SECOND DEFENDANT: No I was, I was self-represented at that time. Now I suffer from epilepsy and when this whole matter went to court in April I was sick, I was away from my office, I was having epileptic fits, I’ve got hospital records to show that I have stayed in hospital and this individual's firm took full advantage of that and bombarded my office with motions in the Supreme Court, I found myself having to defend myself sick.

HER HONOUR: All right well I haven’t got any affidavit in relation to that.

SECOND DEFENDANT: I don’t have it today but that’s why I’m seeking this matter to be put off even for two weeks and I can supply all that information, ail that evidence.

HER HONOUR: All right anything further.

SECOND DEFENDANT: I have a further amended defence here which I seek leave to offer to the court and to the plaintiffs.

HER HONOUR: I've already dealt with that.

SECOND DEFENDANT: No I have - no that was affidavit, I have a further amended defence drawn up.

HER HONOUR: You have provided that to the plaintiff and you need to put on an application to file a further amended defence and you haven't done so, so I dealt with that earlier.

…

The defendant sought an adjournment, I have already made a ruling in relation to that and he seeks also to rely on a further amended defence which I have not granted leave for the defendant to rely on. In the circumstances it seems to me that the plaintiffs’ case really is undeniable. An application for summary judgment is really something that should occur only with the court exercising great care and the various authorities indicate that an order under rule 13(1) which is what is sought in this notice of motion should only be made where it is clear that there is no real question to be tried and it really must be clear that there are no facts in issue and the test applied in considering an application for summary judgment is really fairly well established and there is considerable authority in relation to it.

The court obviously is required to look at the evidence that is provided by the plaintiff and the application it seems to me is supported by evidence from the plaintiff and furthermore in considering the opposition by the defendant I note that there really is nothing that has been provided by way of an affidavit although I think I have allowed the defendant some leeway by being able to submit on certain matters but unfortunately those submissions really are not supported by any material.

46. Her Honour concluded:

THE PLAINTIFF HAS REALLY SATISFIED THE COURT THAT REALLY THERE IS NO DEFENCE AVAILABLE ON THE PLEADINGS TO THE CLAIM AND IN THE CIRCUMSTANCES I GRANT THE APPLICATION FOR SUMMARY JUDGMENT WHICH IS SOUGHT BY THE PLAINTIFF. THERE IS SUMMARY JUDGMENT IN FAVOUR OF THE PLAINTIFF IN THE AMOUNT OF $45,000 PLUS FILING FEES, SERVICE FEES AND SOLICITOR'S FEES ON FILING.

…”

Conclusion

47. The plaintiffs were seeking to enforce a deed. While they were not legally represented when they signed the deed, they had the benefit of legal advice by do so. (see letter from Mr Bouzanis to Joel Marshall dated 15/0/6/2016 – Tab C, p 27 – Defendants’ Court Book). The defendants admitted they had not made payments of the instalments due under the deed.

48. The last further amended defence filed actually raised no defence at all. Nevertheless, her Honour heard oral evidence from the second defendant to ascertain whether there was an arguable defence by the defendants in this latest version. Her Honour allowed the second defendant in oral submissions to raise the issue set out in the defence he was not permitted to file.

49. The Magistrate applied the correct law on summary judgment and was satisfied that there really was no defence.

50. In these circumstances, the Magistrate allowed the defendants to make oral submissions that addressed the matters raised in the defence they intended to file. The second defendant stated that he had been dealing with Adel Haddad-Abourjaily and Emilia Haddad-Abourjaily and he never dealt with these people and he could demonstrate all of that. (T15.14-17). In my view the Magistrate did not deny the defendants procedural fairness. While the test for summary judgment is a demanding one, it is my view that she was entitled to come to the conclusion that the defendants really had no arguable defence. Her Honour did not make an error in exercising her discretion to disallow the defendants’ adjournment application and their application to file a second further amended defence, nor did she make an error in ordering summary judgment. This ground of appeal fails.

51. The result is that this appeal is dismissed. The decision of her Honour Magistrate Keogh dated 24 November 2016 is affirmed. The summons dated 22 December 2016 is dismissed.

52. Costs are discretionary. Costs usually follow the event. The plaintiffs are to pay the defendants’ costs on an ordinary basis.

The Court orders that:

(1)   The appeal is dismissed.

(2)   The decision of her Honour Magistrate Keogh dated 24 November 2016 is affirmed.

(3)   The summons dated 22 December 2016 is dismissed.

(4)   The plaintiffs are to pay the defendants’ costs on an ordinary basis.

**********

Decision last updated: 18 July 2017