Gamulin v B Group Combined Services Pty Ltd; B Group Combined Services Pty Ltd v Gamulin

Texts Cited: Nil.

Category: Procedural rulings

Parties: Merve Gamulin (First Plaintiff/First Cross-Defendant)
Juro-Marko Gamulin (Second Plaintiff/Second Cross-Defendant)
B Group Combined Services Pty Ltd ACN 155 577 049 (Defendant/Cross-Claimant)

Representation: Counsel:
F Clark (Plaintiffs/Cross-Defendants)
A Girgis (Defendant/Cross-Claimant)
Solicitors:
ELM Law Group (Plaintiffs/Cross-Defendants)
DME Legal (Defendant/Cross-Claimant)

File Number(s): 2024/00375341

Publication restriction: Nil.

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 17 March 2026 by the plaintiffs seeking orders vacating the hearing date. A final hearing date was set by the Judicial Registrar on 3 July 2025 commencing on 23 March 2026 with an estimate of three days.

2. The Court has been greatly assisted by the written and oral submissions of counsel who appear for the parties. Every reasonable point has been raised by the parties in support of their respective positions.

3. In support of the application, the plaintiffs read the affidavit of Merve Gamulin of 13 March 2026. Additional parts of the expert report of Mr Bournelis of 20 March 2024 were tendered as exhibit A.

4. The defendant opposes the application for a vacation of the hearing date and reads the affidavits of Basem Bastawrous of 18 March 2026 and of Danyal Ibrahim of 18 March 2026. In addition, counsel for the defendant tendered a number of emails which were put on the basis that there was extensive interaction between the female plaintiff and her then solicitor by email in relation to the conduct of the case and that advice was given about options for the ongoing progress of the case. A joint expert report was tendered and became exhibit 2 on the application. That shows that there is substantial disagreement between the experts depending on the outcome of the case as to liability. If the owners’ expert is to be accepted, the quantum in question is close to $700,000.

5. The history of the matter is important. Initially, there were three applications filed in the NSW Civil and Administrative Tribunal (‘NCAT’). The first two applications were filed on behalf of the plaintiffs. In NCAT proceeding 2024/00114406, an amount of $362,993.01 was sought and filed on 26 March 2024 in relation to alleged defects and incomplete works concerning the property at [XX] Hardie Street in Mascot. On 26 March 2024 NCAT application 2024/00114402 was filed in relation to [XX] Hardie Street, Mascot seeking the sum of $367,570.32. On 26 June 2024, a third application was filed in NCAT being matter number 2024/00235480 by the defendant building company seeking money said to be owing to it under the contract entered.

6. I should give some further background facts. The plaintiffs were the registered proprietors of land at Mascot in Sydney. A contract was entered into on 9 September 2022 between the plaintiffs and the defendant on a cost-plus basis for the demolition of a residential building at [XX] Hardie Street and for the construction of a duplex building with swimming pools on both sites.

7. The builder proceeded to commence the work and at some stage a notice of repudiation was issued by the owners and eventually the contract was terminated by them. The builder regarded that conduct itself as amounting to a repudiation and the contract on any view ended.

8. In relation to the three matters in NCAT, a decision was then made by the plaintiffs to apply to transfer the matter to the District Court. The matter came before Senior Member Robertson who made a transfer order on 23 September 2024, principally on the basis that the defects and rectification claims involved only one breach of contract, not amounting to two separate claims, and because the amounts claimed which I have referred to exceeded in total the $500,000 jurisdictional limit for NCAT, the matter should be transferred to this Court. Of course, the District Court does not have the wide range of powers which NCAT has as to remedial work so the claim is one for damages.

9. A Statement of Claim was filed by the plaintiffs on 19 December 2024 seeking damages for breach of contract in the sum of $730,563.33 with a further restitutionary claim. I note that in paragraph 8 of the Statement of Claim particulars of the loss and damage claim included the cost of rectifying the defects, alternative accommodation whilst the rectification works were being carried out, and holding costs with respect to the property whilst the rectification works were being carried out. That essentially reflected the points of claim which had been filed in NCAT.

10. A Defence was filed on 18 February 2025 by the defendant denying liability and pleading an unlawful termination of the contract by the plaintiffs. In due course, on 6 March 2025, a Cross-claim was filed seeking approximately $76,000 by the builder said to be outstanding under the contract. A defence to the Cross-claim was filed on 31 March 2025.

11. Orders were made for the filing of evidence and on 17 April 2025 the affidavit of the first plaintiff, Merve Gamulin, was filed. The affidavit was limited to giving a history of the alleged building works’ timetable and claims for the cost of repairing the defects. There were no paragraphs in that affidavit relating to consequential losses including holding costs.

12. The expert report that had been obtained by the plaintiffs prior to the NCAT proceedings being commenced from Mr Mario Bournelis, an expert builder, was relied upon as the expert evidence. Some of that report was in evidence before the Court as exhibit A. I note that the report, which was criticised by counsel for the plaintiffs, claims amounts which were reflected in the claims in NCAT on p 99 of the report. It refers to a Scott Schedule that sets out the estimated rectification costs.

13. On 27 June 2025, the affidavit of the director of the defendant, Mr Basem Bastawrous, was filed and that essentially dealt with the issue of the claim for $76,000 odd in the Cross-claim and responded to the claim of the plaintiffs.

14. A reply affidavit was filed by the plaintiffs being the affidavit of Merve Gamulin of 8 September 2025. There was, on the face of it, no holding costs evidence or evidence as to interest costs and related expenses including rental which therefore meant that it did not reflect the particulars set out in paragraph 8 of the Statement of Claim.

15. There has been an extensive amount of evidence and submissions relating to the advice which was given to the plaintiffs by their then solicitor. It seems that the interaction between the solicitor and the plaintiffs went through Ms Gamulin. There were in evidence before me extensive references to emails. Obviously the Court must only proceed to hear the application on the evidence before it. The Court has a somewhat one-sided view from Ms Gamulin as to what she was advised although there are a number of emails in evidence and referred to in her affidavit and in exhibit 1.

16. It seems from all of that evidence that Ms Gamulin is an intelligent woman who was concerned and interested in the litigation and took an active role in its progress. There is no evidence before me that Ms Gamulin has any legal experience or qualifications and, in particular, there is no evidence she has experience in litigation. I am willing to accept as would likely be the case, that she relied heavily on the legal advice which she was given in deciding the conduct of the case. That legal advice one would assume was comprehensive and that nothing relevant was omitted.

17. It is submitted by counsel for the plaintiffs that there were serious omissions in the advice given by the solicitor and that more comprehensive advice would have been provided to prepare, consistent with the Statement of Claim, evidence of proper costings through a quantity surveyor of the work to be done to repair the alleged defects and also comprehensive affidavit evidence from Ms Gamulin about interest, holding costs, rental costs, and the lost rental for the second duplex which it was proposed by the plaintiffs to rent out.

18. In her affidavit there is very concerning evidence of the extensive financial burdens placed on the plaintiffs in relation to costs since the termination of the contract: see paragraph 20 of the affidavit of 13 March 2026.

19. It seems from what is before me that there were a number of emails from the solicitors for the defendant to the then solicitor for the plaintiffs seeking clarification as to whether the claim in the Statement of Claim would be expanded to include an allegation of misleading or deceptive conduct under s 18 of the Australian Consumer Law but also a query as to a proposed evidential expansion to include the costs of a new builder to attend to the defect rectification works. I refer in particular to the emails which are annexures E, F and H to Mr Ibrahim’s affidavit dated 18 March 2026.

20. Looking at the matter as a whole, I cannot criticise the conduct of the defendant company and its solicitors. Pleadings were filed promptly being the Defence and the Cross-claim and evidence was filed responding to Ms Gamulin’s affidavit. An expert, Mr Frizzell, was retained to respond to Mr Bournelis’ evidence. Mr Bastawrous responded in his affidavit which was served to what was in Ms Gamulin’s affidavit.

21. There is prejudice to both parties arising from the Court’s decision as to the vacation of the hearing date. In relation to the prejudice to the plaintiffs, it includes a failure to include as claimed additional costs the various heads of damage that are referred to in the particulars to paragraph 8 of the Statement of Claim. The additional heads of damage include holding costs, paid rent, lost rent, and other heads. These amounts would be significant on any view in the light of Ms Gamulin’s affidavit.

22. If the hearing is not vacated, the plaintiffs would be left potentially to sue their former solicitors with all the difficulties that involves. There may be in relation to advice concerning evidence, questions of a claim of advocate’s immunity. As to that, I can make no decision because I do not have all of the evidence and the context. The plaintiffs would therefore be left to run the hearing with limited evidence albeit that the amount claimed which I have referred to in exhibit A amounts to $730,563.33. One can readily see the difficulties faced by the plaintiffs and the very difficult position they are in by the allegedly incomplete evidence.

23. The material before me does not establish to my satisfaction that Ms Gamulin was given complete and extensive advice about all of the ramifications and the options that were available to her. I have only seen her version of the materials and the emails that have been put before me in the affidavit of Mr Ibrahim. However, it seems that at various stages it was put before her that at present the evidence was limited and could be expanded and the correspondence suggests that she said, “We will continue with that at present.”

24. Counsel for the plaintiffs submits that that decision was made on very limited advice and there was a lack of proper advice about the options which were available, particularly to seek additional evidence, whether in chief or in a more expanded form in reply evidence, which would give rise to the entitlement of the defendant to respond to it.

25. I cannot form an entirely clear view of that, but at the very least it seems that Ms Gamulin was seeking advice as to her position and understood that the evidence intended was limited. However, it also seems to be the case that she was told that the defendant may oppose any expansion of the evidence. Without looking at the entirety of the material and undertaking a careful examination of the entire relationship between solicitor and client, it is difficult to form any final conclusion on it.

26. In relation to the prejudice to the defendant, I have already indicated that the defendant has conducted the case without any obvious problems or delays. Mr Bastawrous in his affidavit has referred to the desire to retain the hearing date and to the effect that it has had on him of not having the $76,000 to which he says he was entitled. He also refers to the cost to him of the litigation; the time that it has taken him to engage with his solicitors and experts in the preparation of affidavits and expert reports; the effect on his family life of taking that time out; the effect on his working life of having time taken away which means he cannot engage in his further professional building work; and the difficulties it has created in his family life.

27. These are significant matters to be taken into account and I can readily understand why the defendant would want the matter to be taken to hearing. Of course I cannot fail to observe the matter in its forensic context of the plaintiffs wanting to expand the claim against the defendant, and the defendant desiring to keep the claim in its more limited form.

28. It is important to consider the principles applicable to the application. I note the District Court Civil Practice Note 16 relating to Case Management in the General List and paragraph 58 relating to adjournments. It currently provides that the Court will only grant adjournment applications where there are very good reasons and that the following will normally not be sufficient reasons for an adjournment: the unavailability of counsel; the failure to comply with the standard orders for hearings or any other orders or directions made by the Court; or the failure to properly prepare the matter for hearing.

29. The last-mentioned matter is particularly relevant in the current context because of the assertions by the plaintiffs that the matter has not been properly prepared for them.

30. There have been a number of cases relating to the principles to be applied in relation to a vacation of a hearing date and in relation to whether a hearing date should be expected to continue. In Davis v Kent [2017] NSWCA 122 the Court of Appeal at paragraph 33 stated:

“The Court and parties are entitled to, and should expect that, subject to justifiable and justified circumstances, proceedings will commence on the allocated date for hearing and proceed to finality and that this process will be carried out with appropriate efficiency. The requirement that proceedings be determined with due despatch, having regard to their just disposition, is now part of the statutory basis upon which litigation is required to be conducted.”

31. Their Honours referred to the decision of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. Of course the position has to be seen in the context of ss 56 to 59 of the Civil Procedure Act 2005 (NSW).

32. Recently, the former Chief Judge, now Price AJA, in Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190 in referring to the relevance of ss 56 to 58 and the overriding purpose in s 56, stated at paragraph 12 that the Court of Appeal has emphasised on a number of occasions that the “parties cannot determine the management of their own cases in their own way and at their own speed” and that “the timely disposition of litigation is central to the provision of justice.”

33. Very recently, in Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 26, Price AJA considered an opposed vacation of hearing application in the Court of Appeal. At [8] his Honour referred to the “heavy burden” an applicant bears on an application to vacate made shortly before the hearing, as in the case at present. At [10] his Honour referred to the Court’s power to vacate the hearing date under s 66 of the Civil Procedure Act 2005 (NSW).

34. At [11] his Honour in his analysis, referred to the relevant considerations to be taken into account in determining whether an application to vacate a hearing date should be granted by citing the decision of Ward JA (as the President then was) in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13]. Her Honour said:

“The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act.”

35. Her Honour indicated the considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in the Court.

36. I note that this dispute has been in existence for a considerable period of time and that what is proposed by the plaintiffs is effectively a substantial new revisiting of expert evidence and an amendment to the pleading which in my view, having regard to the need for the defendant to respond to that evidence and for there to be reply evidence, would involve a delay of up to or exceeding nine months. That is a significant delay for the defendant to suffer in the light of the matters I have referred to above.

37. I have considered applications to vacate a hearing date in a number of reported decisions. I refer to SA (a pseudonym) v Hatfield [2025] NSWDC 56 and also to MM v CR [2025] NSWDC 346. In the Hatfield case, I referred to a decision of the Court of Appeal in Dekkan v Picciau [2008] NSWCA 18 where Basten JA (with whom Hodgson and Tobias JJA agreed) considered an appeal from a judge of this Court to refuse to vacate a hearing date. His Honour said at [51] that a failure of a lawyer to prepare for a hearing may provide the basis for a claim against the lawyer by his or her client, but absent some particular justification, will not entitle a party to an adjournment to the prejudice of the opposing party.

38. In my view, the possibility of a claim against a previous solicitor is a factor to be taken into account but not a decisive factor having regard to the obvious difficulties and financial consequences to a party of attempting to sue a legal adviser. In the case of MM v CR, above, I said that the solicitors were entirely at fault which was accepted and the plaintiff was not at all to blame. That was an institutional abuse case with one of the parties being an institutional representative body and the application there obviously has to be seen in the context of the claim. I refer in particular to what I said at paragraphs 7 to 10.

39. In the end, the discretion needs to be exercised by the Court. The factors I take into account include:

(a) that the cases were commenced by the plaintiffs in NCAT in 2024; (b) that the matter was transferred to the District Court on 23 September 2024; (c) that the Statement of Claim was filed on 19 December 2024, some 16 months ago; (d) that affidavits were filed by the plaintiffs with a limited claim; (e) that the matter was set down for hearing some eight months ago; (f) the significant prejudice to the plaintiffs which I have outlined above; (g) the prejudice to the defendant which I have referred to above; (h) the allegations of poor advice from the solicitors for the plaintiff in circumstances where the claim was important to the plaintiffs.

I also take into account the principles set out in the cases I have referred to and ss 56 to 59 of the Civil Procedure Act 2005.

40. The general principles emerging from the appellate courts are that a final hearing should not be vacated unless good reason is established. The prejudice to both parties must be taken into account and I take that into account. The matter has been set down for a lengthy period of time. I understand the significant pressures on the plaintiffs and the desire to properly prepare and plead their case. I also understand the desire of the defendant to retain the hearing date.

41. Balancing all of the matters involved, the defendant in the present case appears to be a party substantially without fault in the conduct of the matter. It responded to the evidence that was provided by the plaintiffs. Through its solicitors it sent correspondence relating to a potential expansion of the evidence and the Statement of Claim and received no proper response. It repeated that request. The defendant wants the matter over and done with and the pressures on him have been referred to.

42. Balancing all of these matters, although I am very sympathetic to the plaintiffs’ position, I am not persuaded that this is an appropriate case to vacate the hearing date. Accordingly the orders I make are as follows:

43. The Notice of Motion filed on 17 March 2026 is dismissed.

[There followed submissions as to costs.]

2. The plaintiffs are to pay the defendant’s costs of the Notice of Motion as agreed or assessed.

3. An application has been made for a “forthwith order” in relation to costs by the defendant. It seems to me that with the hearing coming on shortly there will not be an extensive delay in the determination of the matter. Exercising the discretion which I have as to costs and taking that matter into account, in my view the normal costs order should be made.

[His Honour then dealt with other timetabling issues.]

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