Ying v Song

[2012] NSWCA 52

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ying v Song & Anor [2012] NSWCA 52

Hearing dates:

14 March 2012

Decision date:

14 March 2012

Before:

Whealy JA

Decision:

1.Order that the hearing date for this appeal be vacated: 16.03.12.

2.Order that the matter be placed in the Court of Appeal Registrar's list for case management.

3.Order that the costs thrown away by the adjournment of the appeal be paid by the appellant.

4.Grant liberty to the respondent to argue at some future date whether such costs should be paid on the indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

INTERLOCUTORY JUDGMENT - application for adjournment - counsel for the appellant accepted matter pro bono at short notice - insufficient time afforded to the appellant to prepare for appeal - whether interests of justice require adjournment - prejudice to respondent by adjournment.

Category:

Interlocutory applications

Parties:

Ming Ying (Appellant)
Lida Song (First Respondent)
Budget Scaffold Supplies Pty Ltd (Second Respondent)

Representation:

Counsel:
M.L. Williams SC (Appellant)
M.R. Lawson (Respondents)
Solicitors:
William Chan & Co (Appellant)
Colin Biggers & Paisley (Respondents)

File Number(s):

2006/257653

 Decision under appeal 

Citation:

[2010] NSWSC 1500

Date of Decision:

2010-12-22 00:00:00

Before:

Ward J

File Number(s):

2006/257653

Judgment

1. Ex tempore: This is unfortunately an application for adjournment that has been made quite late in the piece. Mr Williams has candidly revealed that he has come into the matter very, very recently as a result of his generous participation in the pro bono scheme. I think I can infer from that, and it is borne out by the paragraphs in the affidavit which Mr Lawson has tendered before me, that the appellant is in a parlous financial position and, were it not for the pro bono scheme, would be an unrepresented litigant in this appeal.

1. The position, however, is that Mr Lawson opposes the adjournment. He does so pointing out that an order for costs in the sum of $341,000 has been certified as payable as the costs before the primary judge. Secondly, he raises an issue about the circumstances of the termination of the retainer between the former solicitor and the appellant. Mr Lawson says that the notice of removal of a solicitor refers to the fact that "the appellant has terminated the authority of William Chan & Co, lawyers to act on the appellant's behalf in these proceedings". Certainly there is an inference there that the moving party in the termination was the appellant himself. However, I think, on balance, that I cannot draw any satisfactory final inference from the documentation which is put before me.