NWC Finance Pty Ltd v Borsellino and Anor

Application for adjournment; see transcript p 12

1. This is an application for an adjournment of a three day possession matter that was listed to commence today. In the principal proceedings, the plaintiff sues a husband and wife as mortgagors of residential property. The principal amount advanced was approximately $330,000. It was advanced in the first half of 2013. The interest rate was very high, reflecting the reasonably precarious financial position of the borrowers, and the fact that it was proposed to only be a short term loan. In broad terms, the value of the subject property is around $750,000.
2. Applying the very high interest rates in the loan agreement, the amount of indebtedness now exceeds the value of the property. Of course, if lesser rates were applied, then the position would be different.
3. The matter has been set down for hearing for some time. The first inkling of an adjournment application came earlier today when the matter was called on. A solicitor in the employ of the first defendant's solicitors announced his appearance for both defendants. It was later clarified that the appearance was only being announced on behalf of the first defendant, who is the wife of the second defendant.
4. An affidavit in support of the adjournment application was read by one of the principals of the first defendant's solicitors, Mr Dib. In brief, he stated that the solicitor with carriage of the matter appears to have abruptly ceased work on 1 March 2015. He says that he only became aware that the matter was listed for hearing on 3 March 2015. He had assumed that counsel had been briefed as he had previously appeared in the matter. Mr Dib said he contacted counsel but was told that he was appearing in another matter for the same firm in this Court today. The affidavit includes the statement, "I cannot explain why my firm has not prepared the matter for hearing". The affidavit also includes a recounting of what appears to be an earlier conference with counsel who had been briefed to appear. Mr Dib states: "In the end, the barrister refused the brief because I could not guarantee his fees and because [the barrister] drew to […] attention a letter from the Plaintiff to the effect, 'I cannot act as I have a conflict of interest'. I had been of the view that my firm could act, particularly because the firm was acting without security of its fees because of my long association with the Borsellino Family."