Harris v Asiago

For reasons I gave in an unreported decision on 6 May, I adjourned the matter for hearing today, having made directions for the filing of a Statement of Claim, motion for summary judgment and any further supporting evidence on the part of the plaintiffs. I also made directions for the filing of evidence on behalf of the defendants.

Without going into the detail, there was slippage in relation to the defendants complying with my directions and I note that they are self-represented. As I observed in my previous judgment, the plaintiffs are the father and stepmother of the male defendants. From all the material before me, clearly there is a strong familial aspect to the dispute between them or amongst them.

The defendants assert an interest in the land of which the plaintiffs are the registered proprietors. The reason for the urgency of the matter is that the registered proprietors entered into a contract for the sale of the land on or about 23 April 2026, with a very short period of completion of two weeks, expiring on 7 May 2026. I did not understand time to be of the essence.

The purchaser agreed to a two-week extension of the settlement period, which will now expire on 21 May 2026. I listed the matter for hearing today, despite the shortness of the time for preparation allowed to each of the parties, to enable the premises to be vacated if I acceded to the application for summary judgment.

As I said, there has been some slippage in relation to the timetable on the part of the defendants and it transpired during the course of the discussions this morning that the evidential material upon which the defendants seek to rely has not been served upon the plaintiffs, although it had been sent to my Chambers without copying in the plaintiff’s solicitor. A consideration I record that was drawn to the attention of the defendants by my staff when the emails were received.

It transpired that there is yet further information upon which the defendants wish to rely, which had not been sent to my Chambers and again had not been served upon the plaintiffs; although Ms Green of counsel, who appears for the plaintiffs, has had the opportunity of looking at it during a short adjournment I allowed. That additional material consists of an unsworn affidavit by Jane Muranja, the partner of Mr Silas Asiago, the first defendant, the latter of whom has by leave been representing the other defendants. Then there is a five-page document entitled “Extra Notes For Review” which seems to be really in the nature of a submission and an unsworn affidavit of the first defendant.

The first defendant sent a notice to my Chambers last night after the close of business requesting an adjournment on a number of different grounds. One of them was the need to obtain legal representation. I am informed by the first defendant and I accept that enquiries of Legal Aid were unsuccessful, and the defendants acknowledge that Legal Aid is generally not available for property disputes. Efforts to find a lawyer who might deal with the matter on a pro bono basis while not particularised were unsuccessful. I accept that as correct.

There is also an email from a solicitor, I would assume from yesterday afternoon, it is not dated, indicating a preparedness to accept a retainer on a proper basis but the first defendant, frankly in answer to my question, informed me that the defendants would be unable to raise the amount sought on account of fees at short notice. He applied for an adjournment of two weeks.

The first defendant referred to considerations of procedural fairness, the proper preparation of affidavit material, the obtaining of supporting documentation and annexures, an opportunity to seek legal representation and advice, and the proper ventilation of genuinely disputed issues before the Court.

I explained to the first defendant that given the intervention of the rights of third parties, namely the purchaser, and the prejudice to the plaintiffs in financial terms if the matter did not settle as a consequence of an adjournment, I could not grant an adjournment of two weeks in the proper exercise of my discretion. While I did not ask the question, given what the first defendant told me about the difficulty funding a lawyer, I infer that the defendants are in no position to give any sort of undertaking as to damages that may be incurred by the plaintiffs if the matter were to be adjourned beyond the new date for settlement.

Although I would have been prepared to adjourn the matter for a few days, as I indicated - until Tuesday of next week - I am not satisfied that a short adjournment of that type would materially assist the defendants to provide further cogent evidence in relation to their asserted rights. I am prepared to act on the basis, over the stern objection of Ms Green of counsel, to admit the material upon which they rely, including the unsworn affidavits.

Although the plaintiff’s application for summary judgment may result in a judgment that is final, proceedings for summary judgment are interlocutory in nature and are subject to an extension to the hearsay rule. Moreover, I propose to accept that material even though unsworn, as an indication of the nature of the evidence that the defendants would wish to put before the Court at a final hearing should summary judgment be refused, and in that regard their position will, of course, be taken into account in my determination.

Without going into legal requirements for justifying summary judgment, it is a high bar for a plaintiff and it will not have been cleared if at the conclusion of the evidence the Judge is of the view that there are triable issues demonstrated by the material before the Court, which if established at a final hearing in favour of the defendants, are capable of defeating the right of the registered proprietor of land to possession of it.

Under those circumstances I refuse the application for an adjournment.