Warranted Financial Solutions Pty Ltd v Horton

[2011] VCC 2

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-09-04351

WARRANTED FINANCIAL SOLUTIONS	Plaintiff
PTY LTD
v.
STEVEN LESLIE HORTON	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2011
DATE OF JUDGMENT:	18 January 2011 (Revised 19 January 2011)
CASE MAY BE CITED AS:	Warranted Financial Solutions Pty Ltd v Horton
MEDIUM NEUTRAL CITATION:	[2011] VCC 2

REASONS FOR JUDGMENT

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Catchwords:  Practice and Procedure – Defendant’s solicitor ceasing to act –
Application by the defendant to adjourn the trial – Application opposed
by the plaintiff – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Kohn	Gadens
For the Defendant	In person
HIS HONOUR:

1           This matter has been listed for trial today. I initially heard an application by the defendant’s solicitors for leave to file a notice of ceasing to act. That application was not opposed by the defendant or by the plaintiff. I allowed the defendant’s solicitors to withdraw.

2           The defendant has made an application to adjourn the trial. He seeks an adjournment of the trial for a period of 6 to 8 weeks to allow him time to prepare for trial now that his solicitors have ceased to act.

3           The proceeding was commenced by writ dated 15 September 2009. A defence was filed on the defendant’s behalf on 19 November 2009. The action is by the liquidator of the plaintiff seeking to recover the balance of the defendant’s loan account shown in the general ledger of the company. The defendant says in his defence that he is

entitled to set off against that sum, at least an equivalent amount in respect of
management services he supplied as a director of the company over many years.

4           The adjournment is sought on the basis that the defendant has been unable to raise money to pay for the lawyers who have represented him since 2009. Recent attempts to raise the necessary funds had been unsuccessful. Mr Horton said that he had asked at least two people to assist him.

5           The defendant said that he must now represent himself and needs further time to prepare for the trial. He specifically wishes to consult the previous accountant of the plaintiff, Mr Prior, who is presently in Chile.

6 resolved at mediation and that the trial would not proceed. However, the plaintiff had
served a Notice to Admit on 22 December 2010. Mr Horton felt that he had been

Mr Horton said that in December 2010 he had believed that the dispute would be mediation could occur and he would have time to prepare a “proper and intelligent defence”.

7           Mr Horton said that he had had a loan account with the plaintiff, which recorded the amounts he had received from the company over a number of years. He had, however, reserved the right to claim for his services to the company, although at the time the company was placed into liquidation he had not claimed for the services. Mr Horton believed he was “entitled to director’s fees and management fees” and he said, “I deserve to be paid for my time”.

8           I consider that the application for an adjournment should be refused. The defence that the defendant wishes to pursue is essentially the matter that was raised by the defendant in a letter to the liquidator on 19 March 2009. In that letter he stated, “I am

seeking an Independent Letter of Advice on the amount payable by a Licensed

Financial Services Company to its director for a period for 25 years”. The basis of the defendant’s set off was also pleaded by his solicitors in the defence filed on his behalf in November 2009. Those solicitors continued until recently to act for Mr Horton. On

11 November 2009, they obtained an order for the payment of security, in the sum of
$25,000 for the defendant’s costs “until the conclusion of the trial”.

9           On 5 January 2011, the defendant’s solicitors filed a Notice to Dispute on behalf of the defendant. On 11 January 2011, they notified the plaintiff’s solicitors that they intended to cease acting for the defendant. In an email from Mr Horton to his solicitors dated 11 January 2011, he stated: “Re your letter dated 11 Jan 2011

received as requested. I wish to thank you for your fairness, professional expertise and thoroughness in managing my affairs. Unfortunately due to my circumstances I have no choice but to defend myself. So I agree with your course of action and from now on I will represent myself and the address you have given for service on me is

correct”.

10         The trial of the proceeding was first fixed for hearing on 9 September 2010 by order made 24 March 2010. That date was vacated, and the present trial date fixed, by order made by consent on 1 October 2010, after the parties informed the Court that “the parties are completing pre-trial steps”.

11         The critical consideration in determining the present application is whether it would cause injustice to the parties if the trial were not adjourned. I am not, however, satisfied that the defendant has explained why he is not in a position to proceed with the defence of the claim today.

12         The plaintiff opposes the present trial date being vacated. During the course of the application, the defendant referred to his present lack of means. I consider that some prejudice to the plaintiff would follow from the further delay in the determination of this matter.

13         There does not appear to be any reason why the action should not now proceed. The defendant has had a considerable period to consider whether he would be represented at the trial by lawyers or would represent himself and to prepare to present the matters raised in the defence. The essential issues in dispute have remained unchanged since they were articulated by the defendant in correspondence with the liquidator in March 2009 and in the defence in November 2009.

14         I will now proceed with the trial.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 18 January 2011 (and revised on 19 January 2011).

Dated: 19 January 2011

Hannah Christensen

Associate to His Honour Judge Anderson