Michael Phontos t/as Phontos Legal v CBS Build Pty Ltd

The Application

Prior to the Hearing date, the Plaintiff did not know the nature of the application intended to be made by the Defendants, that is, whether it was to vacate the hearing, stay the proceedings or seek an adjournment. The Plaintiff objected to the Defendants bringing the application without filing a Notice of Motion and providing an affidavit making out the basis for the application.
UCPR 18.2 provides: 18.2 Requirement for Notice (1) a person may not move the court to make any order unless Notice of Motion has been filed and served on each person affected by the proposed order.
Subsection 2 then provides for circumstances when such an application may be made without filing a Notice of Motion. The only possible relevance is sub-rule (b) which permits the making of an application without a Notice of Motion if the filing or service of the same would "cause undue delay or other prejudice to the person by whom the order is sought". There was no submission made on behalf of the Defendants in that regard. In any event, I note solicitors for the Defendants were appointed on 31 January 2022 and the matter was mentioned before the Judicial Registrar on 1 February 2022. There is no reason why a Notice of Motion could not have been filed prior to the day of the Hearing. The fact Mr Ahmed informed the Judicial Registrar on 1 February 2022 that the Defendants intended to make an application to vacate does not excuse compliance with the rules. In those circumstances the application to move the Court without the filing of a Notice of Motion with affidavit evidence in support was refused.

Proceedings Before the Court

These proceedings were carefully case managed by the Judicial Registrar. Mr Freeman of counsel appeared on behalf of the Plaintiff and Mr Gagic on behalf of the Defendants before the Judicial Registrar on 4 August 2021, at which time the matter was listed for pre-trial conference on 18 September 2021 at 9.30am. The Judicial Registrar also ordered that any further adjournment to be supported by an affidavit.
On 8 September 2021, the matter came again before the Judicial Registrar. Mr Freeman of counsel appeared for the Plaintiff and Mr Gagic represented himself and the First Defendant on this occasion "over serious objections of Mr Freeman ". [1] The Judicial Registrar ordered that, in the event the Defendants had not made an application for costs assessment by 21 October 2021, the matter would be listed for direction and Hearing. The Judicial Registrar listed the matter for a directions Hearing on 21 October 2021 and ordered that any further adjournment was to be supported by an affidavit.
On 21 October 2021, the matter came again before the Judicial Registrar. Mr Freeman of counsel appeared for the Plaintiff. There was no appearance for the Defendants. At that time, the Judicial Registrar made the following orders: 1. fixed for hearing on 3 February 2022 for 1 day; 2. Standard Orders for Hearing; 3. Defendants to serve evidence by 3 December 2021; 4. Case Managed List Directions Hearing 22 November 2021 at 9:30am; 5. notices to issue to the Defendants at ross@cbsbuild.com.au; 6. if the Defendants does not appear on 22 November 2021, the Defence filed on 16 June 2021 will be struck out under rule 12.7 of UCPR 2005.
The Standard orders are annexed to District Court Civil Practice Note 1.
On 22 November 2021, Mr Freeman of counsel appeared for the Plaintiff and Mr Gagic appeared for the Defendants. At the time Mr Freeman submitted that the court was in error in making the orders of 8 September 2021 regarding the Defendants filing an application for the assessment of costs. As I understand the submission, that order was made on the basis that the filing of such application would effectively stay these proceedings. Mr Freeman referred the court to section 198(7)(b) of the Legal Profession Uniform Law 2014 (NSW) and a decision of Brereton J in the matter of Bitar Pty Ltd [2015] NSWSC 2158. The effect of that decision was that the new uniform law which commenced 1 July 2015 prohibited the commencement but not the maintenance of proceedings such as these. An earlier iteration of that Act prohibited both.
In any event, on 22 November 2021 the Defendants sought an extension of time by which to file and serve evidence (beyond 3 December 2021). That application was refused and the Hearing date was confirmed.
The matter was again before the Judicial Registrar for Mention on 1 February 2022. Mr Freeman of counsel appeared for the Plaintiff and Mr Ahmed appeared for the Defendants. The Judicial Registrar made the following orders: 1. Confirm hearing date; 2. note: Defendants will make an application to vacate the hearing date on 3/2/22; 3. note: Defendants instructed solicitors on 31/1/2022;
It was with that background that the matter came before me as Civil List Judge amidst a busy list on 3 February 2022.

At a glance

Court

Decision date

Source

Judgment (3 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Cited By (1)