Willis & Bowring Mortgage Investments Limited v Belramoul & Ors

[2009] NSWSC 125

CITATION:	Willis & Bowring Mortgage Investments Limited v Belramoul & Ors [2009] NSWSC 125
HEARING DATE(S):	6 March 2009
JUDGMENT OF:	Schmidt AJ
EX TEMPORE JUDGMENT DATE:	6 March 2009
CATCHWORDS:	PROCEDURE - adjournment application by first defendant - solicitor ceasing to act - adjournment sought for new legal representation to be arranged - justice requires short adjournment being granted on basis of order of costs thrown away - costs payable forthwith
LEGISLATION CITED:	Civil Procedure Act 2005
CASES CITED:	Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
PARTIES:	Plaintiff - Willis & Bowring Mortgage Investments Limited First Defendant - Nabil Belramoul Second Defendant - Suzanne Wendy Belramoul Third Defendant - Daryl Kenneth Badman
FILE NUMBER(S):	SC 10266/06
COUNSEL:	Plaintiff - Mr C Harris, SC First Defendant - Mr Belramoul in person Second Defendant - no appearance Third Defendant - no appearance
SOLICITORS:	Plaintiff - Willis & Bowring

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Friday, 6 March 2009

10266/06 WILLIS & BOWRING MORTGAGE INVESTMENTS LIMITED v NABIL BELRAMOUL AND ORS

EXTEMPORE JUDGMENT

1 HER HONOUR: These proceedings concern a claim that the defendants owe the plaintiff the sum of $1,990.000, plus interest. The hearing is fixed to commence on Monday next. It is listed for four days. The hearing was fixed by the Registrar in September last. Both the plaintiff’s claim, filed in January 2006 and a motion filed by the first defendant in August 2007, are listed for hearing. All the evidence, which is in affidavit form, is on.

2 The first defendant’s motion seeks orders setting aside a judgment given in the proceedings in August 2006. There, an earlier motion filed by the defendant was dismissed and defences were struck out as disclosing no reasonable defence under Part 14 Rule 14.38 of the Rules, with judgment in the sum of $2,508,489.00 being entered.

3 Mr Belramoul's adjournment application was made by motion of 2 March. It was made on the basis that Mr Belramoul did not have the ability to represent himself for a 4 day hearing and needed a 3 month adjournment, in order for a new solicitor to familiarise himself with the matter. The motion was supported by an affidavit in which Mr Belramoul repeated the ground set out in the motion, but provided no further information as to the circumstances in which it came to be that new solicitors had been instructed.

4 A notice of ceasing to act as solicitor had been filed in February 2006.

5 Mr Belramoul’s case was that in early February he learnt that his solicitor was intending to cease acting; he was not seeking an indefinite adjournment, but an opportunity to arrange legal representation for the trial in circumstances where his solicitor had been away in China uncontactable for two weeks; he had not yet been able to obtain the necessary documents to instruct the new solicitor he had engaged and he had made his application in advance of the hearing, which he was not simply trying to delay.

6 The application was opposed by the plaintiff, who argued that given the history of the matter and the nature of the real contest between the parties, where, even on the defendant’s best case, he owed the plaintiff over $400,000, the adjournment should be refused. If granted, it should be on the basis of an order that the plaintiff pay the undisputed sum. That order was opposed by the defendant, who denied that such a sum was owing.

7 There is no question that the Court has the power to grant the adjournment pursuant to s 66 of the Civil Procedure Act 2005. The application must be considered in the context of the requirement in s 56 of the Act, that the Court must facilitate the just, quick and cheap resolution of the real issues in the proceedings in order to ensure that the dictates of justice are adhered to, as s 57 and s 58 require, consistently with binding authority such as that of the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37.

8 Adjournment applications are frequently made. It is not uncommon that they arise when there has been a change in legal representation. It is well settled that whether an adjournment should be granted in such a situation, depends on what is just in the particular circumstances.

9 In Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364, it was observed at 365-7:

The basic contention on the appeal was that the appellant ought to have been granted an adjournment by the trial judge to enable him to prepare his case and to present his defence fully and adequately. The action came on for trial almost a year after it had been instituted. There is no doubt that the appellant received notice of trial and was aware of the date for trial. Mr Mancini's affidavit shows that he was aware in February that the trial of the action was pending. The relevant principles are set out in the judgment of Deane J, with which the other members of the court agreed, in Squire v Rogers (1979) 39 FLR 106 at 113:
"The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances ( Conroy v Conroy ). Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general role, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him."
In Sarunic Bros Pty Ltd v AFG Insurances Ltd (delivered 12 March 1984) this Full Court also emphasised the discretionary character of the decision by a trial judge of an application for the postponement or adjournment of a trial. The Full Court in that case referred to the general considerations involved in such a decision. The Chief Justice, with whose judgment the other members of the court agreed, said:
"The date for the commencement of this trial was fixed in accordance with the ordinary procedures of the court. It is essential to the orderly conduct of the business of the court that trial dates be adhered to. ... When a case comes before the trial judge on the date fixed for trial, the parties are entitled to come to court with an assurance that the trial will commence and will proceed, so far as possible, without interruption, to its conclusion. The court, which is in this respect the protector of the public interest, is also entitled to that assurance. Judicial time is set aside for the trial. If the trial does not proceed, there may be loss of judicial time with a consequent effect upon the list of cases awaiting trial and detriment to those involved in them."
The District Court, like the other courts of the State, is subject to great pressure from the volume of cases to be tried. The judges of that Court, like the judges and magistrates of the other courts, have a responsibility to ensure, so far as possible and subject to overriding considerations of justice, that the limited resources which the State commits to the administration of justice are not wasted by failure of parties to adhere to trial dates of which they have had proper notice. Moreover, the Deputy Commissioner of Taxation, like other plaintiffs, is entitled to have his claim adjudicated upon and enforced without unnecessary delay. Judges must also bear in mind the possibility that a defendant who is justly liable in respect of a claim may endeavour to postpone his obligation. There is no evidence that that is the motive of the present appellant, but it is right that judges should be alert, as a general consideration when considering applications for an adjournment or postponement of trial, to the risk of persons endeavouring to manipulate the legal process as the means of escaping or deferring their just obligations. These were all relevant considerations for the trial judge. There is no reason to suppose that he overlooked the countervailing consideration that the appellant was unable to obtain his solicitors' file and obtain other representation by reason of lack of funds. It must be said, however, that that consideration was considerably weakened by a number of factors. No attempt was made, so far as we were told, to provide details of the appellant's financial position, nor of the factors which enabled him to borrow money on the eve of trial but not before. Nor was any detail vouchsafed of whatever efforts might have been made to overcome the problem in the light of the approaching trial. It is not known whether the possibility of legal aid was investigated and with what result. What is known, and was known to the trial judge, is that it was not a case of a party who had been advised that there was merit in his case but who lacked the funds to present it; it was a case of a party who had been advised by his solicitors that he did not have a good defence and was nevertheless seeking an adjournment to present the defence which had been the subject of that advice.

It is seldom that an appellate court will feel justified in reviewing a trial judge's decision on an adjournment application, but it may do so if satisfied that in all the circumstances there has been an injustice, Bloch v Bloch (1981) 55 ALJR 701 at 703.

10 In this case there is no question that the first defendant has long known of the hearing date. There is a judgment which he seeks to attack. The adjournment application was made on 2 March, the week before the hearing, in the circumstances Mr Belramoul explained. While it became apparent that steps could be taken today, to supply him with the documents which still remain with his former solicitor, that will still leave him in a position where he will be without legal representation if the hearing proceeds next week.

11 The question of what justice requires as between the parties in this situation is rather finely balanced, it seems to me. Having considered the competing arguments, I have concluded that balance tilts slightly in favour of the adjournment being granted, but for a short period.

12 The first defendant seeks an adjournment until the first week in April. I am inclined to grant the adjournment on that basis, the first defendant accepting that an order for costs thrown away of the adjournment must be made in favour of the plaintiff.

13 The plaintiff sought that costs be payable on an indemnity basis and that they be payable forthwith. Those orders were opposed by the defendant. I came to the conclusion that while the circumstances were such that justice required that the plaintiff pay the costs thrown away forthwith, as a fair adjustment of the respective parties’ positions in the circumstances of the adjournment, they were not such that there could otherwise be a departure from the usual order. The adjournment application having been granted in these circumstances, that there was misconduct by the plaintiff of a kind which would warrant an indemnity costs order was not apparent.

14 It did not appear to me that on one hand, the defendant could be successful in obtaining an adjournment and on the other, it could be concluded that the basis for that success could be misconduct warranting an indemnity costs order.

15 The plaintiff also argued that the Court would take account of its position, as the result of the adjournment, so that a hearing date would be fixed which did not result in it having to incur additional costs, in briefing new counsel. I accepted that submission as a fair consideration in the circumstances of this adjournment. A new hearing date has been fixed for 29 April, with an estimate of 3 days, given the nature of the real contest between the parties.

Orders

16 For these reasons, I ordered:

1. The adjournment of the hearing fixed to commence on 9 March to 29 April 2009.

2. That the defendants pay the plaintiff’s costs thrown away of the adjournment and the hearing of this motion.

3. Leave be granted to the plaintiff to have these costs assessed and paid forthwith.

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