Wardy v NSW Trustee and Guardian (No 2)

[2020] NSWCA 271

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wardy v NSW Trustee and Guardian (No 2) [2020] NSWCA 271

Hearing dates:

20 October 2020

Date of orders:

20 October 2020

Decision date:

20 October 2020

Before:

Payne JA

Decision:

(1)   Vacate the hearing on 22 and 23 October 2020;

(2)   List the appeal for hearing on 1 and 2 March 2021;

(3)   Stand the matter over to the Registrar’s list on 8 February 2021. If all steps in preparation of the appeal have been completed that hearing before the Registrar may be vacated by email to the Registrar from the parties.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application to vacate hearing

Cases Cited:

NSW Trustee and Guardian v Wardy [2020] NSWSC 18

Category:

Procedural and other rulings

Parties:

John Wardy (Appellant)
NSW Trustee and Guardian (Respondent)

Representation:

Counsel:
W G Muddle SC (Appellant)
M Meek SC with C Coventry (Respondent)

Solicitors:
Paul Marsh & Associates (Appellant)
Glass Goodwin (Respondent)

File Number(s):

2020/62824

Publication restriction:

Nil.

Judgment – EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. The present proceedings were commenced in the Equity Division in 2016. Slattery J, the presiding judge, delivered his reasons on 29 January 2020: NSW Trustee and Guardian v Wardy [2020] NSWSC 18.

2. A notice of appeal was filed on 26 February 2020. The matter has been before this Court on a number of occasions. On 3 August 2020 the matter came before White JA. His Honour ordered, upon receipt of the usual undertaking as to damages from Mr Wardy, that the respondent be restrained from dealing with a Coogee property. His Honour noted the undertaking from the respondent that it notify the appellant with not less than 21 days’ notice of any intention to deal with a property at George Street, Redfern.

3. On 10 August 2020 the matter was before the Registrar and orders were made for the filing of various documents. The matter was again before the Registrar on 28 September 2020, 7 October 2020 and again on Monday, 19 October. The matter is substantially prepared and had been listed to commence this Thursday 22 October with an estimate of two days.

4. On the evening of 19 October 2020, a notice of motion was filed seeking to vacate the hearing date. An affidavit of Yi Chen sworn that day was read before me on the application. Ms Chen deposes that she is a business partner of the appellant’s solicitor, Mr Marsh, in a small two-partner suburban practice and that Ms Chen does not have any experience in probate or estate litigation and has no familiarity with the subject matter of the appeal.

5. Apparently on 19 October 2020 Mr Marsh suffered a problem with vision in his left eye which deteriorated dramatically and suddenly. He attended the Sydney Eye Hospital later that day, was operated on last evening and has now been released. The medical report exhibit A deposes that Mr Marsh must be lying in the prone position for at least five days for 20 hours a day.

6. Mr Muddle SC appeared for the appellant. In his written submissions he pointed out that he had only recently been briefed in this matter, replacing junior counsel who had appeared before Slattery J. Mr Muddle tells me, and I accept, that Mr Marsh is the only person with familiarity with the voluminous appeal books in this matter which run to some nine volumes and that he is not in a position to finalise the appellant’s reply submissions in the absence of instructions from Mr Marsh. Neither is Mr Muddle in a position to file and serve the written submissions required to be filed about the additional or fresh evidence sought to be relied upon by the appellant on the hearing of the appeal.

7. Mr Meek SC, who appears with Ms Coventry for the respondent, did not oppose the appellant’s application for an adjournment in the circumstances which I have described. In those circumstances, despite the lateness of the application, I am persuaded that this is a matter where the hearing fixed for this Thursday should be vacated.

8. The parties are each available in one of the three weeks that the Court identified were available for hearing this matter early in the New Year and, accordingly, I order that the hearing listed for Thursday, 22 October 2020 be vacated and that the hearing be fixed for Monday and Tuesday, 1 and 2 March 2021. I also order that the matter return to the Registrar’s list on 8 February 2021. If the steps in preparation presently outstanding have been completed by that date, the hearing can be vacated by email from the parties to the Registrar.

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Decision last updated: 29 October 2020