Woods v McKinlay

[2021] NSWSC 831

Supreme Court

New South Wales

Medium Neutral Citation:	Woods v McKinlay [2021] NSWSC 831
Hearing dates:	6, 7 July 2021
Date of orders:	7 July 2021
Decision date:	07 July 2021
Jurisdiction:	Equity
Before:	Parker J
Decision:	See [17]
Catchwords:	CIVIL PROCEDURE – application for adjournment – lockdown orders in force in Greater Sydney – plaintiff ordered by NSW Health to self-isolate due to possible exposure to COVID-19 – whether plaintiff has a fair opportunity to participate in the hearing – application refused
Cases Cited:	Sanson v Sanson [2021] NSWSC 417
Category:	Procedural rulings
Parties:	Antoinette Woods (Applicant/Plaintiff) Orlene McKinlay (First Respondent/First Defendant) David McKinlay (Second Respondent/Second Defendant)
Representation:	Counsel: S Stanton (Applicant/Plaintiff) J Trebeck (First and Second Respondent/First and Second Defendant) Solicitors: Nexus Lawyers (Applicant/Plaintiff) Beswick Lynch Lawyers (First and Second Respondent/First and Second Defendant)
File Number(s):	2019/263271
Publication restriction:	Nil

Judgment – EX TEMPORE

Revised from transcript; issued 8 July 2021

1. This is an application by the plaintiff to adjourn a trial that has been fixed to commence before me next Monday, 12 July 2021. Five days have been allocated for the hearing. The hearing was fixed by the Chief Judge on 3 November 2020 and a pre-trial directions hearing was held on 9 June 2021. The application has been brought on an urgent basis.

2. The case arises out of a family dispute concerning the ownership of a home at Telopea in western Sydney. The plaintiff, Ms Antoinette Woods, has lived at the house since October 2001, but it is actually registered in the name of Ms Woods' sister, Ms Orlene McKinlay, and her son, Mr David McKinlay. They are the first and second defendants.

3. There is a dispute between the parties about the terms on which the property was acquired. According to Ms Woods, it was acquired under a resulting trust or some other trust arrangement in her favour. Although the deposit and stamp duty, together with the other acquisition costs, were paid by the defendants, according to Ms Woods she has since made all repayments of the mortgage and has paid all of the outgoings on the property.

4. According to the defendants, the arrangement was an informal one, under which Ms Woods made the repayments of the mortgage and the expenses, but had no tenure beyond one month's notice or, alternatively, reasonable notice. By cross-claim the defendants seek vacant possession of the property, although they acknowledge that on the sale of the property, they will be obliged to account to Ms Woods for a sum of $130,000 which she paid off the mortgage in 2002.

5. At the time of the pre-trial directions hearing, the parties agreed that the case should, if possible, proceed by way of face-to-face hearing and arrangements were made for this to be done. But those plans were disturbed by the lockdown which began in Greater Sydney on Friday, 25 June. Last Wednesday, 30 June, the lockdown was extended until midnight on this Friday, 9 July 2021. At the time of delivering judgment it is unclear whether the lockdown will be extended further but the Court must proceed on the assumption that it may well be.

6. In an email sent by my Associate following the pre-trial directions hearing, the parties were informed that a courtroom had been allocated for an in-person hearing, but it was expressly noted that these arrangements were subject to change. On 30 June my Associate advised the parties that it was unclear whether a face-to-face hearing would be possible and the parties should prepare on the assumption that they would have to attend the hearing by video link or telephone. There was no demur from either party to this and they began negotiations with a view to arranging for witnesses to give their evidence in this manner.

7. What has precipitated this application is that on Monday night, the plaintiff received a text message from the NSW Department of Health contact tracing team which advised her that she had attended a venue where she might have been exposed to COVID-19. She was ordered to self-isolate until next Friday, 16 July 2021. Counsel for the plaintiff submits that the effect of this self-isolation order will be such as to prejudice the plaintiff in the conduct of the hearing so severely as to require the hearing to be adjourned.

8. The evidence before the Court shows that the plaintiff is 74 years old. As I have mentioned, she lives at the property in Telopea. She does not have a computer and has no experience of using Microsoft Teams, the software platform upon which the trial will be conducted. However, she does have a smart phone. Counsel accepted that Microsoft Teams is capable of being downloaded onto a smart phone, although he suggested that the plaintiff lacked computer literacy and therefore presumably would find it difficult to operate Microsoft Teams from her phone.

9. Ms Woods' solicitor also deposes on information and belief that the plaintiff will require assistance from her legal representatives with "navigating" a hard copy of the court book (which is to be produced electronically but which will be capable of being produced in hard copy should that be required). The plaintiff also wishes to have her daughter physically present as a support person during the hearing.

10. It is not suggested in this application that the mere fact that the plaintiff, along with other witnesses, will be giving evidence by video is a reason for adjourning the hearing: see Sanson v Sanson [2021] NSWSC 417 at [31]. The application is put on the basis that it will be impractical for the plaintiff to obtain suitable assistance from, and provide suitable instructions to, her legal team for the purposes of the conduct of the proceedings.

11. An initial difficulty with this submission is that even before the isolation order was made, the plaintiff and her legal advisors, all of whom are in Sydney, were subject to a lockdown which extended for the whole of the two working weeks prior to the commencement of the trial and may extend over the period of the trial itself. Counsel for the plaintiff stated, when the application was first mentioned before me yesterday, that he had not yet conferred with the plaintiff face-to-face. Today counsel informed me that he had planned to do so on Thursday, although this is not recorded in the evidence from counsel's instructing solicitor.

12. I do not doubt that counsel had contemplated at least the possibility of conferring with the plaintiff on Thursday. But I feel bound to say that it is surprising that if such a face-to-face conference is so essential, it was to take place so soon before the hearing is due to commence. Furthermore, it remains unclear to me, despite my requests to counsel for assistance on this point, whether, if the lockdown continues until Friday, it would be possible for him to confer face-to-face with the plaintiff even if she were not required to self-isolate.

13. In the end, however, it is not necessary for me to resolve these factual questions. That is because even if the effect of the isolation order is to prevent a face-to-face conference between the plaintiff and her legal representatives, and will also prevent the plaintiff from attending the offices of her solicitors for the purpose of the hearing, still I do not accept that this disadvantage is such as to require the Court to take the extreme step of vacating the hearing.

14. I see no reason why the plaintiff cannot be provided with a hard copy of the court book and give instructions to her solicitors and evidence by telephone. In addition, it may be possible to provide the plaintiff with a phone which has had Microsoft Teams downloaded onto it and to give her sufficient instructions to be able to operate the program. But even if that proves impossible, I think that telephone communication will suffice.

15. I have no doubt that for the plaintiff to participate in this way by telephone it will be more difficult and time consuming for all concerned than if she could participate face-to-face. But the hearing is already going to be more difficult and time consuming than it would otherwise be anyway, as a result of the need to conduct it on a remote basis. As already mentioned, it may well be that the lockdown will still be in place when the trial occurs.

16. Should additional time be required by the plaintiff for the purpose of communicating instructions to, or receiving advice from, her legal advisers in the course of the hearing, that will of course be accommodated. As I have said, this will no doubt be unwelcome to the plaintiff and her legal advisers, but I do not think that it can be said that it deprives her of a fair opportunity to participate in the hearing. For these reasons, the application will be refused.

17. The orders of the Court are:

1. Order that the notice of motion filed 6 July 2021 is dismissed.

2. Order that the plaintiff pay the defendants’ costs of the motion, including the appearance on 6 July 2021.

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Decision last updated: 08 July 2021