Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments Limited) v Belramoul & Ors

Plaintiff - Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments Limited) PARTIES : First Defendant - Nabil Belramoul Second Defendant - Suzanne Wendy Belramoul Third Defendant - Daryl Kenneth Badman

COUNSEL : Mr C Harris, SC - Plaintiff Mr MLD Einfeld QC with Mr J Horowitz, counsel - Defendants

SOLICITORS : Willis & Bowring Solicitors - Plaintiff Websters - Defendants

• 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10266/06 - KINGSWAY GROUP LIMITED (FORMERLY KNOWN AS WILLIS & BOWRING MORTGAGE INVESTMENTS LIMITED) v NABIL BELRAMOUL & ORS

REASONS 1 HER HONOUR: The plaintiff filed its statement of claim in January 2006, seeking orders in respect of moneys due under a loan agreement, following the defendants' failure to pay interest due. The defendants' defences raised claims of waiver or estoppel, the plaintiff having obtained possession of the land and alternatively, that the proceedings were an abuse of process. 2 By judgment of 31 August 2006, the defendants' defences were struck out as disclosing no reasonable defence and judgment in favour of the plaintiff in the sum of $2,508.489.03 was entered, with an order for costs in favour of the plaintiff. 3 By motion of August 2007, the defendants sought orders setting aside the 2006 judgment and allowing them to file a further defence. That defence seeks to raise allegations that the plaintiff failed in its duties as mortgagee on the sale. There is no question between the parties that Part 36 of the Uniform Civil Procedure Rules 2005 grants the Court a discretion to set aside the judgment here in question. 4 Both the motion and the merits of the plaintiff's case, in the event that the motion succeeded, were listed for hearing in March 2009. That hearing did not proceed and the matter came on again for hearing on 29 April 2009. 5 The adjournment of the March hearing flowed from the defendants' application, to permit new legal representation to be arranged. (See Willis & Bowring Mortgage Investments Limited v Belramoul & Ors [2009] NSWSC 125.) There I concluded that:

7 There is no question that the Court has the power to grant the adjournment pursuant to s 66 of the Civil Procedure Act 2005. The application must be considered in the context of the requirement in s 56 of the Act, that the Court must facilitate the just, quick and cheap resolution of the real issues in the proceedings in order to ensure that the dictates of justice are adhered to, as s 57 and s 58 require, consistently with binding authority such as that of the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37.

8 Adjournment applications are frequently made. It is not uncommon that they arise when there has been a change in legal representation. It is well settled that whether an adjournment should be granted in such a situation, depends on what is just in the particular circumstances. 9 In Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364, it was observed at 365-7: The basic contention on the appeal was that the appellant ought to have been granted an adjournment by the trial judge to enable him to prepare his case and to present his defence fully and adequately. The action came on for trial almost a year after it had been instituted. There is no doubt that the appellant received notice of trial and was aware of the date for trial. Mr Mancini's affidavit shows that he was aware in February that the trial of the action was pending. The relevant principles are set out in the judgment of Deane J, with which the other members of the court agreed, in Squire v Rogers (1979) 39 FLR 106 at 113: "The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances ( Conroy v Conroy ). Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general role, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him." In Sarunic Bros Pty Ltd v AFG Insurances Ltd (delivered 12 March 1984) this Full Court also emphasised the discretionary character of the decision by a trial judge of an application for the postponement or adjournment of a trial. The Full Court in that case referred to the general considerations involved in such a decision. The Chief Justice, with whose judgment the other members of the court agreed, said: "The date for the commencement of this trial was fixed in accordance with the ordinary procedures of the court. It is essential to the orderly conduct of the business of the court that trial dates be adhered to. ... When a case comes before the trial judge on the date fixed for trial, the parties are entitled to come to court with an assurance that the trial will commence and will proceed, so far as possible, without interruption, to its conclusion. The court, which is in this respect the protector of the public interest, is also entitled to that assurance. Judicial time is set aside for the trial. If the trial does not proceed, there may be loss of judicial time with a consequent effect upon the list of cases awaiting trial and detriment to those involved in them." The District Court, like the other courts of the State, is subject to great pressure from the volume of cases to be tried. The judges of that Court, like the judges and magistrates of the other courts, have a responsibility to ensure, so far as possible and subject to overriding considerations of justice, that the limited resources which the State commits to the administration of justice are not wasted by failure of parties to adhere to trial dates of which they have had proper notice. Moreover, the Deputy Commissioner of Taxation, like other plaintiffs, is entitled to have his claim adjudicated upon and enforced without unnecessary delay. Judges must also bear in mind the possibility that a defendant who is justly liable in respect of a claim may endeavour to postpone his obligation. There is no evidence that that is the motive of the present appellant, but it is right that judges should be alert, as a general consideration when considering applications for an adjournment or postponement of trial, to the risk of persons endeavouring to manipulate the legal process as the means of escaping or deferring their just obligations. These were all relevant considerations for the trial judge. There is no reason to suppose that he overlooked the countervailing consideration that the appellant was unable to obtain his solicitors' file and obtain other representation by reason of lack of funds. It must be said, however, that that consideration was considerably weakened by a number of factors. No attempt was made, so far as we were told, to provide details of the appellant's financial position, nor of the factors which enabled him to borrow money on the eve of trial but not before. Nor was any detail vouchsafed of whatever efforts might have been made to overcome the problem in the light of the approaching trial. It is not known whether the possibility of legal aid was investigated and with what result. What is known, and was known to the trial judge, is that it was not a case of a party who had been advised that there was merit in his case but who lacked the funds to present it; it was a case of a party who had been advised by his solicitors that he did not have a good defence and was nevertheless seeking an adjournment to present the defence which had been the subject of that advice. It is seldom that an appellate court will feel justified in reviewing a trial judge's decision on an adjournment application, but it may do so if satisfied that in all the circumstances there has been an injustice, Bloch v Bloch (1981) 55 ALJR 701 at 703.

10 In this case there is no question that the first defendant has long known of the hearing date. There is a judgment which he seeks to attack. The adjournment application was made on 2 March, the week before the hearing, in the circumstances Mr Belramoul explained. While it became apparent that steps could be taken today, to supply him with the documents which still remain with his former solicitor, that will still leave him in a position where he will be without legal representation if the hearing proceeds next week.

11 The question of what justice requires as between the parties in this situation is rather finely balanced, it seems to me. Having considered the competing arguments, I have concluded that balance tilts slightly in favour of the adjournment being granted, but for a short period.

12 The first defendant seeks an adjournment until the first week in April. I am inclined to grant the adjournment on that basis, the first defendant accepting that an order for costs thrown away of the adjournment must be made in favour of the plaintiff. 13 ...

15 The plaintiff also argued that the Court would take account of its position, as the result of the adjournment, so that a hearing date would be fixed which did not result in it having to incur additional costs, in briefing new counsel. I accepted that submission as a fair consideration in the circumstances of this adjournment. A new hearing date has been fixed for 29 April, with an estimate of 3 days, given the nature of the real contest between the parties.

6 When the matter came on for hearing again on the adjourned date, a further adjournment application was pressed by the defendants, essentially on two bases. Firstly, that counsel had been briefed only the previous day and thus had had an inadequate opportunity to prepare for the hearing and secondly, that it was counsels' opinion that the evidence should be revisited, it being in the defendants' interests that further expert evidence be put on. 7 Evidence was led from Mrs Belramoul, the second defendant, to support the application, which outlined the difficulties confronting her and her husband and the steps that they had taken, in order to arrange legal representation. That evidence was in the most general of terms. It outlined that they had financial difficulties which had only recently been sufficiently resolved to enable them to re-engage their former solicitor and to instruct counsel. The result was that they had met with counsel in conference only at 4pm on the day before the hearing. 8 Section 66 of the Civil Procedure Act 2005 undoubtedly gives the Court a discretion to grant an adjournment, but the application was opposed by the plaintiff as being contrary to the requirements of the Civil Procedure Act 2005, which, by s 56 required that the discretion sought to be exercised again in the defendant's favour, be exercised so as to ensure that the overriding purpose of the Act, namely the 'just, quick and cheap resolution of the real issues in the proceedings', was achieved. 9 The plaintiff argued that in this case, it was relevant that the defendants' current solicitors had advised and represented them in the preparation of the case for hearing. All of the evidence had been finally been put on by the parties, in accordance with the Court's directions, by October 2008, when the plaintiff had replied to the expert evidence put on by the defendants in August 2008. The defendant's problems with representation arose in 2009. As a result, in March, a considerable indulgence had been granted to the defendants, over the plaintiff's opposition, when the hearing was adjourned, in order for other legal representation to be arranged by the defendants. The further adjournment sought when the hearing resumed in April, was pursued on the basis of an entirely inadequate explanation of what the defendants had done since March, in order to arrange legal representation for the hearing. 10 In the circumstances, I declined the adjournment application, indicating that I would later give reasons for that conclusion. These are those reasons. 11 I was satisfied that it would not have done justice between these parties to grant the further adjournment sought, so as to explore the calling of further expert evidence. That there had been recent instructions given by the defendants to counsel to appear at the hearing, was not of itself a proper basis for a further adjournment, in the circumstances then before the Court The defendants were given a fair opportunity to overcome their difficulty with legal representation, finally receiving more time than they had pressed for, to overcome their problems. The evidence relied on to explain what had been done since March, was, on any view, scanty. Had legal representation not been arranged, the hearing would undoubtedly have had to proceed. Counsel were briefed late, but of itself, in these circumstances, that could not be a proper basis for another adjournment of this hearing, as was properly accepted. There is no automatic right to an adjournment when there are problems with legal representation. Having obtained such an adjournment, in circumstances which on the last occasion were finely balanced, it would have been patently unjust if a further adjournment then flowed from the fact that legal representation had been arranged. 12 As to the desire to explore further evidence, it had to be considered that in 2008, with the assistance of their legal advisers, the parties had joined issue, including in relation to the expert evidence which they each proposed to rely on. That counsel recently instructed had formed the view that the defendants' case could be improved, if another forensic course was pursued by the calling of other expert evidence which might advance the defendants' claims, was at this stage of these proceedings not a basis upon which a further adjournment of the hearing could justly rest, having in mind its history. 13 A further adjournment to call further evidence to improve the defendants' case was not what the dictates of justice demanded, as s 58 of the Civil Procedure Act required. Nor would it have been consistent with the requirements of sections 57 and 59, which are concerned with the efficient and timely disposal of proceedings before the Court, nor s 60, which requires the Court to have regard to the proportionality of costs. Those statutory requirements had to be approached in light of binding authority, including that of the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. The matters discussed in Dawson, referred to in the March judgment, also again arose for consideration. 14 With the assistance of their current solicitors, the defendants had made various forensic decisions in 2008 as to the way in which they would advance their case. It was ready for hearing in October 2008 and was then given a hearing date in March 2009. That hearing did not proceed, because of the defendants' then difficulty in arranging legal representation, after their solicitors had ceased acting for them earlier in the year. 15 I concluded that counsel lately briefed having come to the view that there might be other expert evidence which could be called to advance the defendants' case, was simply not a just basis for adjourning this hearing again. (See the discussion in E. G. and H Nominees Pty Ltd v General Mutual Insurance Co. Ltd (in Liquidation) and Anor (1978) 59 ALJR 460 and Watson v Watson (1968) 2 NSWR 647). 16 It followed, for all of these reasons, that the adjournment application had to be refused.

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