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.

1. The letter, however, from William Chan & Co to the respondents' solicitors is less clear. Mr Chan refers to the previous telephone conversation between the two solicitors and then states: "We confirm that due to the unavailability of counsel we can no longer act for the appellants in the appeal". So the material before me does not really enable me to draw any satisfactory conclusion about Mr Lawson's second point.

1. Mr Lawson, however, says the adjournment will cause prejudice to his client and he suggests that the prejudice cannot be remedied by a costs order. In that regard, he points to what appears to be the accepted impecuniosity of the appellant. I agree that there will be prejudice, but the court is placed in a difficult position here where either the appeal goes on with the appellant presumably representing himself, or where the pro bono system will enable, after proper preparation, an appeal to proceed if it is to proceed at all. Indeed, if the appeal does proceed, it may do so on a more economic basis than the structure of the present grounds of appeal would indicate.

1. As I say, this is not an unusual situation, although it is always an unfortunate situation. If the adjournment is granted it obviously prejudices Mr Lawson's side and no doubt prejudices it quite unfairly. Mr Lawson rightly, I think, points to the fact that an order for costs may prove to be a hollow form of compensation for the respondents.

1. Nevertheless, the overall interests of justice require in my view that the adjournment be granted. I propose an order that the appeal that is listed for this coming Friday be adjourned and the matter be placed in the Registrar's list. The Registrar can case manage the resurrection of the proceedings without too much delay.

1. I propose to make a simple order that the costs that are thrown away by the adjournment of the appeal be paid by the appellant, but I will give liberty to the respondents in due course to argue that those be granted on an indemnity basis. I do not think that I am really in a position to make that decision today.

1. I think that it would be altogether too harsh that there be a stay until costs are paid. There seems to me no practical likelihood that costs will be paid if such an order were made. One might say the same concerning the costs that have been ordered and certified to date.

1. So I think the unfortunate reality is that the overall interests of justice require that the adjournment be granted and that the orders be made as I have formulated them. Unless there is anything else anybody wants from me, those will be the orders.

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Decision last updated: 26 March 2012