Ng v Chong; Ng v Lee & 2 Ors

Please don't hesitate to contact myself or Mr Vassili, on xxxx xxx x29, if you require any further information in this matter.

Naomi McMullan Solicitor" 8 Since a further email confirmed the solicitors were not instructed I propose to rule on the question of costs and Ms Chong's application for indemnity costs. I am satisfied that Mr Vassili has had more than adequate notice of the application for indemnity costs and sufficient opportunity to obtain instructions to meet the application despite his assertions to the contrary. 9 My reasons for dismissing the summons and my ruling on the issue of costs follow. 10 It is necessary to set out in summary a chronology of relevant events as they are established by the evidence: 6 March 2008 Statements of claim were filed in the Local Court. Both sought a liquidated sum. Case number 389/08 alleged that nominated amounts were fraudulently withdrawn by the plaintiff from a nominated bank on nominated days without Ms Chong's permission. Case number 391/08 alleged nominated sums were lent to the plaintiff by Ms Chong on nominated days and have not been repaid.

7 April 2008 The plaintiff filed a defence to both claims. The plaintiff was represented by Mr Vassili, solicitor. Ms Chong was unrepresented at this time. (The evidence before me did not establish the basis of Mr Ng's defence to either of the claims.)

1 May 2008 Particulars of the fraudulent taking were sought together with the account details from which it is alleged the monies were taken. (I am unable to resolve whether the request for particulars was served or otherwise came to Ms Chong's attention at this time. This has no bearing on the outcome of the appeal.)

16 May 2008 The proceedings were returned before the Registrar at Parramatta Local Court. Ms Chong was self-represented on that occasion. The plaintiff was represented by Mr Vassili, solicitor. The matters were adjourned by consent for hearing to 6 June 2008. The Court was informed that there were prospects of the matter resolving without the need for a hearing.

6 June 2008 There was no appearance for the plaintiff. Ms Chong appeared unrepresented on that occasion. The filed defences were struck out and judgment entered for Ms Chong (and the other claimants).

10 June 2008 The plaintiff filed a notice of motion seeking a stay of the orders entered on 6 June 2008 and the reinstatement of the defences on the basis that Mr Vassili (the plaintiff's solicitor) had wrongly diarised the date for hearing.

27 June 2008 Magistrate Garbett heard the notice of motion and reinstated the defences. The plaintiff was ordered to pay Ms Chong's costs. Ms Chong was self-represented on that occasion.

2 July 2008 The Registrar issued a Notice of Listing advising the parties that the proceedings were listed for hearing on 8 August 2008 and listed the matter for review on 25 July 2008. The parties were directed to exchange witness statements by 18 July 2008.

18 July 2008 Ms Chong filed with the Court and served on Mr Vassili materials in compliance with the directions of the Registrar.

25 July 2008 Magistrate Garbett presided over the review. Mr Vassili appeared for the plaintiff. Ms Chong was represented by Mr Lee. A transcript of the proceedings on that date was tendered on the appeal. His Honour observed on no less than four occasions that the matter was listed for hearing on 8 August 2008 and, despite the concerns expressed by Mr Vassili about the jurisdictional limit of the Court, that the matter would proceed to a hearing on that date. There was no application by Mr Vassili to adjourn the hearing or to vacate it.

Although the plaintiff departed for overseas on 25 July 2008 I am unable to be satisfied that Mr Vassili was aware of that fact when he appeared on the review despite his unsatisfactory evidence bearing upon the question. It is clear, beyond doubt, that on 25 July 2008 his Honour was concerned that the matter proceed to a hearing on 8 August 2008 in accordance with the timetable for the service of evidence and that the matter had been listed for review to ensure that had occurred. On the review his Honour enquired of the parties as to whether the witness statements had been served. He was given to understand that matter was in hand. His Honour then directed that a statement of agreed facts and issues be filed by 6 August 2008. It would appear from correspondence to which I will later refer that the plaintiff was informed by telephone of his Honour's directions and the fact that the hearing date of 8 August 2008 was confirmed.

1 - 5 August 2008 Mr Vassili corresponded with the plaintiff by email after unanswered telephone messages and SMS messages. The relevant parts of the correspondence have been extracted as follows: Solicitor to plaintiff - 1 August 2008

I have left several telephone messages for you and an SMS message.

I confirm my previous advice that you have a hearing next Friday 8 th August 2008 at 11am at the Local Court Parramatta. I am required to provide further material for which I need your urgent instructions by the 6 th August 2008.

I understood you were going for a short trip to Malaysia and would be back for the hearing. I advised you that this would be fine provided I could contact you by telephone. I have not heard from you and I can not make contact with you. Accordingly, if I do not hear back from you within the due time or you do not attend the hearing, sadly, I will have to inform the court that I am not ready to proceed with the matter as I can not obtain instructions. This may result in costs of the day being awarded against you…"

As per previous correspondences, my phone xxxxxxxx00 has finally worked yesterday.

Please find these instructions to proceed with all legal matters pertaining to myself for your usage and provision of materials as necessary to progress matters.

Due to family commitments here in Malaysia, I may not be back to Sydney for a while (est. 1-2 mths). Should you require assistance with the materials that were prepared prior, I can arrange for my sister (in Sydney) to visit and assist. Please let me know in advance of what you require…"

As advised by telephone at the last Local Court appearance directions were issued for:

i. The issues to be narrowed and a statement of agreed facts prepared with the parties to see if they could agree on matters; and ii. The hearing was confirmed for Friday 8 th August 2008.

I confirm my previous advice that I need you to go through the material such that we can prepare a summary of the transactions (ie take from the statements the monies which have come and gone from you). I previously advised that such would be required.

You now have the difficulty in that the matter is confirmed as being set down for 8 th August 2008:

i) … ii) You will not be in the jurisdiction and you will be required for instructions and cross examination as well as narrowing of the great bulk of material that is currently before the court.

i. The reason for you having to attend Malaysia - when you say family reasons what do you mean? ii. Your anticipated arrival time back in Sydney such that an alternate date can be sought to be obtained…"

Accordingly, please confirm when you intend satisfying my memorandum of fees.

ii. Ms Chong through her solicitor (and I note a barrister has now been instructed) has sought settlement discussions. Assuming my fees are satisfied and I continue to receive instructions in the matter, do you wish me to attend a settlement discussion and if so on what basis am I instructed to settle the matter, if at all?

iii. Your representative in Sydney has not contacted me. Andrew, this is a most serious matter in which a substantial amount of monies is being claimed against you and for which you are instructing Supreme Court proceedings. I can not possibly be expected to continue in the matter without your representative taking the time to have an interest in the proceedings. Please ensure that she contacts me urgently such that matters can be discussed.

All in all, I do not consider myself instructed unless the above matters are satisfactorily addressed.

You should appreciate, I am in a couple of days out from a hearing with no capacity to comply with directions; no client available and you have simply by email instructed that I proceed to incur further expense and exposure by commencement of Supreme Court proceedings. While I am not unsympathetic to your personal circumstances, Andrew, you must be pro-active in your own matter.

I await urgent communication from you and from your representative in Sydney from whom I understand I may obtain instructions."

There is a suggestion that you are not overseas. That was a proposition put by the Barrister for Ms Chong.

Have you an air ticket or such (Passport stamp and date) that you can verify your whereabouts? If so could you email or fax it to me (xx)xxxxxx80.

Can you advise the precise detail of your brother as I will need to appraise the Court with as much detail as I can..."

Please find attached copy of air ticket. I could email you scanned copy of passport with departure stamp but that would be done tomorrow at the quickest. I had to transit Bangkok Thailand from Sydney to Kuala Lumpur Malaysia.

My brother has taken ill with increased attacks of AF (Atrial Fibrillation of the heart that leads to sudden strokes) and the business requires additional resources urgently to handle the workloads. I certainly had not planned for this event!"

6 August 2008 A comprehensive Statement of Issues prepared by counsel was filed by Ms Chong.

8 August 2008 The matters were called on for hearing. Mr Vassili appeared and made an application to adjourn the proceedings. Ms Chong was represented by counsel. On that occasion Mr Vassili first referred his Honour to a notice of motion that he claimed was filed on 23 July 2008. There is nothing to indicate that the notice of motion was on the court file. There was no application to file the document instanter. It was not otherwise referred to. While I accept that the notice of motion had been filed, I am not satisfied it had been served. In addition there was no application to move on any unserved notice of motion. Accordingly, the fifth ground of appeal must fail. 11 Mr Vassili then proceeded to argue that the late service of particulars of fraud in the statement of issues served on 6 August 2008 deprived his client of a fair hearing and that the proceedings should be adjourned. Further, that proceedings recently filed in the District Court arising out of the relationship between the parties were such that the Local Court proceedings should be stayed pending the outcome of those proceedings. His Honour refused the application to adjourn or vacate the hearing on either basis and refused the stay. He encouraged Mr Vassili to discuss the matter of particulars with Ms Chong's counsel over lunch noting that he would be afforded a full opportunity to cross-examine Ms Chong, and her witnesses, in the hearing on all issues bearing on the legitimacy of the claim made against his client. 12 When the matter was called on at 2pm Mr Vassili made a fresh application for the hearing to be vacated on the basis, this time, for the first time, that his client had informed him late the previous week that he was overseas because of what was described as "a family illness" and he was not capable of giving instructions. On any view, that was a serious overstatement of the situation given the email correspondence to which I have earlier referred and the fact that instructions had been repeatedly sought from Mr Ng which he had chosen not to respond to in any meaningful way. Mr Vassili then sought to rely on rule 15.3 of the Uniform Civil Procedure Rules (UCPR) in remounting his application for an adjournment on the basis of the late provision of the particulars of fraud. His Honour noted that the matter had been set down for hearing four weeks earlier and that the matter would proceed to a hearing that day. In so far as the complaint about particulars was concerned his Honour indicated that he would deal with any prejudice resulting from that complaint as the case proceeded. Mr Vassili then informed his Honour that he was without instructions and regarded himself as unable to continue to appear in accordance with his ethical obligations. Mr Vassili withdrew from the proceedings pursuant to his Honour's grant of leave. The proceedings were then heard and determined in Mr Ng's absence.

13 In the course of the hearing his Honour referred to Ms Chong's filed statements in the form of what he described as a statutory declaration comprising a number of other statutory declarations. His Honour then invited her counsel to summarise the claims by reference to the comprehensive statement of issues that had been prepared at the Court's direction. Ms Chong was in the witness box during the proceedings as counsel sought to persuade his Honour, ultimately successfully, that the claims were substantiated. At his Honour's invitation to summarise the evidence and shorten the proceedings, the defendant having effectively chosen not to participate in the litigation, submissions were made by reference to the analysis undertaken and the tracing exercise detailed in the statement of issues. I am satisfied that this was an approach available to his Honour in all the circumstances and that no error infected the process. 14 Section 58 of the Civil Procedure Act 2005 provides as follows: Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.

15 Subject to the UCPR the Local Court has power under s 66 of the Civil Procedure Act to adjourn proceedings. The Court of Appeal has observed that such a power is a wide and ample power with the principle consideration being to do what is necessary to do justice between the parties (see City of Sydney Council v Satara [2007] NSWCA 148 at [17] per McColl JA). The exercise of the power to adjourn proceedings, as with the exercise of any power under the Act or the Rules, requires the Court to give effect to the overriding purpose in s 56 of the Act, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings (see Dennis v Australian Broadcasting Commission [2008] NSWCA 37 at [29] per Spigelman CJ).

16 I am well satisfied that in refusing the adjournment his Honour was mindful of the need to do justice between the parties, consistent with the mandatory obligations imposed on him by s 56 of the Act, and that he was entitled to take into account the attitude and conduct of the parties in doing so. Ms Chong complied with the directions for the filing and serving of witness statements and the preparation of a detailed and comprehensive statement of issues. In contrast Mr Ng had made no apparent effort to prepare himself for the litigation much less to ensure that his solicitor was adequately instructed before he left the jurisdiction. While there was some evidence of the illness of a family member tendered on the appeal, in the form of a doctor's certificate dated 16 July 2008 from a practitioner in Malaysia referring to a patient with the plaintiff's surname presenting with chest pain which on examination was diagnosed as "Atriol fibrillation of the heart", there was no evidence of any kind tendered in support of the application for an adjournment in the Local Court and nothing other than unsupported claims from the bar table that Mr Ng was "not capable of giving instructions" - a matter which, as I have observed, was a serious overstatement of the true position. It remains obscure to say the least why the defendant left the jurisdiction at all on 25 July 2008, which leaves me in considerable doubt as to whether family illness was the genuine reason as distinct from his departure being a demonstration of his desire to avoid responsibility for the claims against him, perhaps with the intention of securing a vacation of the proceedings by default. In my view the Magistrate was entitled to regard the grounds for the adjournment as lacking detail, particularity or cogency and to reject the application on that basis alone. I am not satisfied that in doing so he denied Mr Ng procedural fairness on any of the grounds particularised in the summons.

17 Without moving to resolve the conflict as to whether the request for particulars was actually served on 1 May 2008, I am satisfied that upon service of witness statements on 18 or 25 July 2008 concerning Mr Ng's misuse of the bank accounts and the means by which he gained access, adequate particulars were supplied. In addition the statement of issues served on 6 August 2008 provided a full and complete set of particulars in support of the allegation of a fraudulent taking of monies from the bank account. While Mr Vassili may have considered that he was acting in his client's interests in mounting the application for the adjournment, in part at least, on the basis of a complaint concerning particulars, in my view it was an argument that was designed to mask the fact that his client had left the jurisdiction in circumstances where he must be taken to have known that an application for an adjournment on the fact that his client was overseas would be doomed to fail. I am also satisfied that despite Mr Vassili's warnings and urgings Mr Ng made the decision (albeit by inaction) to do nothing to ensure his interests (such as they were) were protected by ensuring his solicitor was sufficiently instructed to participate in the hearing in his absence in the event that the adjournment was refused. In my view, the submission that he was denied procedural fairness when his solicitor withdrew from the proceedings is without any merit. 18 Ms Chong seeks an award of indemnity costs. I was referred by her lawyer to the statement of principle recently articulated by Campbell J in Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126 at [11]: "It is open to a court to make an order for indemnity costs when the justice of the case requires. While the making of such an order is a discretionary matter to be decided by reference to the facts of a particular case, and the categories in which such a discretion might be exercised are not closed, a useful catalogue of circumstances where, in the past, courts have thought it appropriate to make an order for indemnity costs appears in the judgment of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-4: "… I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152); evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo ); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata ) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (1993) 46 IR 301); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise: eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records [1983] Ch 59). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis." 19 I am urged to order indemnity costs in this case on the basis that the appeal was instituted and maintained in circumstances where Mr Ng must be taken to have known that in seeking to challenge the Magistrate's decision on the basis that he had been treated unfairly, the claimed for injustice was entirely of his own making. It was not in dispute that Mr Vassili withdrew from the proceedings because he was not instructed to meet the case to be advanced by Ms Chong - a situation brought about by Mr Ng's own conduct. The email correspondence puts this beyond doubt. It also puts to rest any lingering suggestion that he was prejudiced by not being advised or aware of the case against him. 20 I am satisfied that in these circumstances, and on a proper application of the principles to which I have referred, that the proceedings in this Court were commenced in wilful disregard of the known facts. Although that finding is capable of supporting the inference that they were commenced for some ulterior motive I do not need to travel that distance in this case before awarding indemnity costs, and expressly resist doing so. I am satisfied that in all the circumstances Ms Chong should not have to bear the costs of the appeal. 21 Accordingly, I make the following orders: 1. The appeals are dismissed. 2. The plaintiff is to pay the defendants' costs on an indemnity basis. **********

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