The Easter Investment Pty Limited v E and S Projects Pty Limited trading as the Cemento Group

[2022] NSWDC 97

District Court

New South Wales

Medium Neutral Citation:	The Easter Investment Pty Limited & Anor v E & S Projects Pty Limited trading as The Cemento Group & Ors [2022] NSWDC 97
Hearing dates:	2 February 2022
Date of orders:	2 February 2022
Decision date:	02 February 2022
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I vacate the hearing dates listed today and over the next two days as well.
Catchwords:	ADJOURNMENT APPLICATION – Alternative to severance of hearing on liability, to hearing on quantum – Why matter not ready – WHY SEVERANCE INAPPROPRIATE.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	First Plaintiff – The Easter Investment Pty Limited Second Plaintiff – C.B. Enterprises International Pty Ltd First Defendant – E & S Projects Pty Limited trading as The Cemento Group Second Defendant – Stephen Fabrizio Third Defendant – Corus No 1 Pty Limited trading as trustee for Corus No 1 Trust Fourth Defendant – Corus No 2 Ply Limited trading as trustee for Corus No 2 Trust Fifth Defendant – Corus No 3 Ply Limited trading as trustee for Corus No 3 Trust Sixth Defendant – Corus Group Pty Limited trading as trustee for Corus Group Trust Seventh Defendant – Cemento Constructions Pty Limited Eighth Defendant – Enzo John Salsano
Representation:	Plaintiffs Nathan Defendants Aulb
File Number(s):	2020/00195671
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is an application for an adjournment. These proceedings were commenced by a statement of claim filed on 2 July 2020. There were originally two defendants. The statement of claim was for the princely sum of $9,542.50. Added to that in the initiating process was the filing fee, service fees and solicitors’ fees, bringing the total claim to the sum of $11,878.50. The primary claim was within the small claims jurisdiction of the Local Court. On 19 January 2021, the plaintiff filed an amended statement of claim. That does not purport to be a liquidated claim.

2. That document contains 12 prayers for relief. The first four prayers are these:

“1. A declaration that the first defendant to eighth defendants’ actions have caused damage to the building and property owned by the plaintiffs.

2. A declaration that the first defendant to eighth defendants’, actions are continuing to cause damage to the building and property owned by the plaintiffs.

3. An order that, within a timeframe, to be limited by the Court, the first defendant and second defendants pay the agreed amount of specified repair works as agreed on 13 September 2019 by the first and second defendants, the amount of $9,542.50.

4. Alternatively, an order that, within a timeframe, to be limited by the Court, the third defendant to eighth defendants pay the agreed amount for specified repairs [sic] works as agreed on 13 September 2019 by the first and second defendants in the amount of $9,542.50.”

Further prayers for relief indicate that in addition to the sum of $9,542.50, damages were sought for further rectification costs to the property owned by the plaintiffs.

3. The matter has been managed by the Judicial Registrar. The Judicial Registrar made a number of orders in 2021. On 5 July 2021, at 1.15, online court bench sheets show that he made certain orders, albeit that the same document shows the date of sitting as being 6 July 2021 at 9.30am. The orders recorded for those times are these:

"This matter is listed for directions (case managed list) on 10 August 2021, 9.30am at Sydney.

Vacate directions…on 6 July 2021, 9.30am at Sydney…

Defendant to serve affidavit evidence by 27 July 2021.

Defendant to serve expert liability and quantum/damages evidence by 27 July 2021.

Any further adjournment to be supported by affidavit otherwise parties to make an OLC [online court] request for hearing."

4. On 10 August 2021, the judicial registrar set the matter down for hearing today, 2 February 2021, with an estimate of three days. He ordered the plaintiff to serve any affidavit evidence in reply by 31 August 2021. He also made an order that the parties were to participate in an informal settlement conference by 28 September 2021. A third order required the plaintiff to serve expert liability evidence by 31 August 2021.

5. On 31 January 2022, that is on Monday, at 5.24pm, the plaintiff filed a notice of motion which contains eight prayers for relief; the final two prayers were otiose. Those prayers are these:

"1. Order that this motion be returnable at the commencement of the hearing on 2 February 2022.

2. Order that the plaintiffs have leave to rely on the affidavit of Alfredo Babazogli affirmed and served 30 January 2022.

3. Further or in the alternative, order that the question of liability be determined separately from the question of quantum.

4. Order that the hearing commencing 2 February 2022 be in relation to liability and not quantum and that the Court fix a further hearing date to hear the question of quantum.

5. Further or in the alternative, order pursuant to UCPR 31.46 that the Court appoint an expert to provide expert report on the quantum of the plaintiff's claim in a manner on terms that the Court deems fit.

6. Order that the parties' respective experts be cross-examined concurrently.

7. In further alternative to prayers 2 to 5 above, order that the hearing commencing 2 February 2022 be vacated and adjourned to a date suitable to the Court."

6. There are a large number of problems concerning the current matter. MFI A2 is a notice to produce, served by the plaintiff's solicitors on the defendant's then solicitor, bearing date 14 September 2021. The document outlines a large number of specific documents called for by the plaintiff. I could not categorise the notice to produce as a fishing expedition. The notice to produce, I assume, was served on 14 September 2021 or shortly thereafter. In a letter dated 31 January 2022, the plaintiff's solicitors argue why the notice to produce is relevant to the facts in issue in the proceedings. The letter does appear to provide persuasive reasons why the notice to produce was required. I have been told without objection that about 400 pages of documents were served by the defendants, the majority of them yesterday and some of them in the early hours of this morning. Counsel for the plaintiffs has not been able to read those documents, he tells me.

7. The problem for the plaintiff is that the plaintiff made no attempt to enforce the notice to produce at any time prior to the commencement of the current week, 31 January 2022. If the documents were necessary for them, the plaintiffs should have sought to enforce the notice to produce, for example, within three or four weeks of its having been served, if it was ignored by the defendant's solicitors. No-one has put before me any correspondence addressed by the plaintiff's solicitors to the defendant's then solicitors, seeking to enforce the notice to produce at any earlier time.

8. The matter is compounded by the late service of an affidavit of Alfredo Babazogli which was affirmed on 30 January 2022. That was last Sunday. That quantifies damages that the plaintiffs say were caused by building works at the defendants' premises, adjacent to the plaintiffs' property. The quantification amounts to $170,155.02. Paragraphs 12 and 13 of the affidavit are these:

"12. I have breakdowns of the costings referred to in the above table. However, I have not annexed them as I do not have them with me at the time of affirming this affidavit. I will produce them upon request.

13. I have included a combined percentage of 25% for preliminaries and margin as in my experience this is what builders would charge for carrying out this type of work."

The breakdowns of the first of those six costings is contained in a letter signed by Mr Babazogli addressed to one of the plaintiffs, bearing date 13 October 2021. I have been told, without objection, by counsel for the defendants that this document was only given to them either on Monday, Tuesday or today. Clearly those costings and breakdowns were available to the plaintiff on 13 October 2021. The seventh and final costing was for damage caused to a grease trap and according to Mr Babazogli's affidavit of 30 January 2022, the amount claimed was $36,909.10 in accordance with a quotation from Mr Simon Totterdel of STS Plumbing of Lane Cove, in a quotation dated 24 January 2022, that is, made last Monday week. As I understand it, the affidavit of Mr Babazogli is the first one which quantifies the total of the amount claimed by the plaintiffs. Clearly, the defendants have had no opportunity of investigating and replying to the affidavit of Mr Babazogli, affirmed last Sunday.

9. According to the orders made by the Judicial Registrar, the last date for the service of any such evidence was 31 August 2021, not 31 January 2022. It was only five months late. Clearly, the plaintiffs are not in a position to present their case in full. The idea of severing liability and quantum is completely unacceptable. It is conceded by counsel for the plaintiffs that some of the evidence relating to liability will be given by people who may also be relevant to the issue of quantum, therefore credit findings relating to quantum may affect the Court's view on liability if a witness on liability is impugned in the witness' evidence relating to quantum. The idea that this case could be separated is, in my view, fanciful.

10. No adequate explanation has been provided as to why the affidavit of Mr Babazogli that was affirmed last Sunday, could not have been affirmed at the time that he made his letter, 13 October 2021, and that would have allowed the plaintiff to make an application to the Court, namely the Judicial Registrar, for leave to rely upon such an affidavit, and he would have allowed time for the defendants to reply to it.

11. The matter is further complicated by the fact that the last documents in the file that I saw, when it was brought to me yesterday afternoon, were notices of ceasing to act by a solicitor who had been acting for all eight defendants, albeit that we have found today a notice of change of solicitor that was filed yesterday, which grounds the right of audience of Mr Auld for the defendants.

12. The matter is even further complicated by the fact that because of AVL problems, neither counsel is currently being seen by me on the AVL screens. I can hear both of them. Mr Auld was never visible. Mr Nathan was earlier in this day, but he has been absent from screen for some little time now.

13. For those reasons, I vacate the hearing dates listed today and over the next two days as well.

Decision last updated: 04 April 2022