Plaintiff/Defendants by Counterclaim v Defendants/Plaintiffs by Counterclaim

2 The case involves a claim by the plaintiff to enforce a short term loan agreement against the first defendant as borrower and the second and third defendants as guarantors. There is a counterclaim by the defendants of unconscionability concerning this loan agreement and an earlier loan agreement.

3 The applicable law is well established and was recently set out in Dawn v Carlisle Homes Pty Ltd,[2] where the Court of Appeal said:

1. An application of this kind in a civil proceeding must be determined in light of the overarching purpose of the Civil Procedure Act 2010, "to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute". This includes consideration of any explanation for the need for the adjournment, the balancing of potential prejudice and harm, and the interests of justice.
2. Adjournment applications are not to be considered solely by reference to whether any prejudice to the opposing party can be compensated by costs. The time of the court is a publicly funded resource, and inefficiencies in the use of that resource are to be taken into account, as well as the need to maintain public confidence in the judicial system. The effect of adjournments on other litigants using the court has long been regarded as relevant. What "might be perceived as an injustice to a party" when viewed in isolation "may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources". The "need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard" are "pressing concerns to which a court may have regard".
3. Where the lateness of an adjournment application would make it inevitable that an adjournment would involve waste of court resources and inefficiency in the legal system overall, "[m]odern case management principles, as articulated in Aon, and as reflected in the Civil Procedure Act, support the refusal of leave to adjourn".

4 The proceeding was commenced by writ on 22 December 2021.

5 On 26 July 2024, the Court made orders setting the matter down for a trial commencing on 5 September 2025, with an estimate of 5 to 8 days. This trial was adjourned as a result of the circumstances of the defendants' then solicitors. The adjournment was not opposed. The matter was then set down for a trial commencing on 27 October 2025.

6 On 16 October 2025, Mr Kingdon, of the defendants' then solicitors, informed Chambers that he wished to make an urgent application seeking leave to file a notice of ceasing to act on behalf of the defendants. A summons was filed on 17 October 2025. Mr Kingdon also filed a confidential affidavit in support of the application.

7 On 22 October 2025, Mr Kingdon's application was listed for hearing before Justice Garde as the duty judge. The following exchange, inter alia, ensued:

HIS HONOUR: So on the face of the material, subject to what may be said hereafter, I'd be inclined to grant your application. What is of primary interest to me is what then will transpire. What I can do is to endorse any order that is made under 'other matters' to note that the trial is listed for the days that it's been listed for, and also to add a paragraph in other matters that requires or at least invites Mr Carvalo [sic] and Mr Chiavaroli to get into immediate contact with the self-represented litigant's office of this court with a view to receiving advice and assistance as to the conduct of the trial as self-represented litigants.

...

So I'll just ask you, you have had more contact, of course, with your clients than anybody else. Is there anything else that practically can be done to encourage them to be focused on the fact that they've got a Supreme Court trial that's going ahead?

MR KINGDON: I can say that I have had no instructions in relation to having this current trial date vacated. So Your Honour's suggestion that they be assisted in terms of representing themselves, at least on the first day because Your Honour may be aware that His Honour Justice Attiwill has referred the proceeding to Judicial Registrar Gitsham for a mediation on the second day of the trial.

...

And consequently there may be some avenue to reach a resolution on that day.

...

HIS HONOUR: ...I would invite you, when I do make an when I do make an order again, subject to what may be said in a moment or two, to also urge them, in correspondence or by other means, to consult the self-represented litigants office of this court, which of course is even-handed and it's a function of the court to attempt to support people who find themselves in the position that they appear to be in, and at least that assists them in probably better addressing the situation than would otherwise be the case.

MR KINGDON: And if I may say, Your Honour, I can certainly assure the court that I will do that, notwithstanding the absence of funding, I'll make my best efforts to ensure that they're equipped to be able to proceed on 27 October.

8 Justice Garde made orders granting Mr Kingdon leave to file a notice of ceasing to act by 4:00pm on 24 October 2025. On 23 October 2025, Mr Kingdon filed a notice of ceasing to act for the defendants.

9 At 11:49pm on Sunday 26 October 2025, Mr Frank Sanna, a solicitor, informed the Court by email that he wished to appear as a 'friend of the Court' at the commencement of the trial on 27 October 2025. Mr Sanna's email explained that he had met with the third defendant and Mr Jeffrey Levine of counsel on 24 October 2025 to discuss the possibility of retaining their services for the trial, but that the third defendant had not entered an agreement.

10 On 27 October 2025, the second and third defendants appeared in person, together with Mr Sanna. Mr Sanna sought leave to appear as a McKenzie friend for the defendants. I granted Mr Sanna leave to do so, limited to the hearing on 27 October 2025, and allowed him to make oral submissions on behalf of those defendants. The second defendant sought leave to appear on behalf of the first defendant, given r 1.17 of the Rules that a corporation cannot take a step in a proceeding save by a solicitor without leave. I granted the second defendant leave to appear for the first defendant, limited to the hearing on 27 October 2025.

11 At the hearing on 27 October 2025, Mr Sanna made an application on the defendants' behalf, for the trial to be adjourned to Wednesday, 29 October 2025. Mr Sanna submitted that the defendants would be prejudiced if the trial proceeded on 27 October 2025 because they could not adequately present their case without representation, and there was a possibility that the defendants could obtain funding to appoint solicitors and counsel for the purposes of the trial. No evidence was provided of this possibility that the defendants would obtain funding, but Mr Sanna made this claim from the bar table as an officer of the Court. Mr Sanna also stated that the defendants' former solicitor had ceased to act because the defendants had stopped paying them, but maintained that there was benefit in a short adjournment while the defendants sought funding.

13 I exercised my discretion to grant the defendants' adjournment. In doing so, I said in an ex tempore oral ruling:

... Mr Sanna, who is an officer of the court, says there is a possibility that they may retain his funding. There is no evidence that the defendants are going to provide any such funding but given the fact that he has been in discussions and as an officer of the court comes before me in his capacity as a McKenzie friend and says there is a possibility I will allow them this one opportunity. My view [is] that prejudice to the plaintiff by loss of one day will be minimal but it is nonetheless a prejudice. A loss of one day is nonetheless an important consideration for me to take into account.

I am concerned that if the case commences today that - and Mr Sanna's only acting in his capacity of a McKenzie friend - that it will be not as orderly as it should be. To the extent that this opportunity gives the defendants a final opportunity to get their house in order I will give it. I am concerned that there is no affidavit evidence before me about the expectation that the defendants will actually put Mr Sanna in funds, that's lacking. And obviously there's some real inconvenience to the plaintiff in losing the trial date today. But really trying to weigh it the best that I can and given the fact that there is some complexity in the case I am going to give them one last opportunity.

...

So what will happen on Wednesday if the matter does not resolve tomorrow the case will be opened by the plaintiff unless the defendants come before me on proper material. That is, material which is set out in an affidavit form on oath or affirmation for any further adjournment and all of the relevant applicable principles which are identified to the defendants are canvassed. But absent that the trial will commence and it will then conclude in accordance with the joint timetable. ...

14 The parties attended a mediation before Judicial Registrar Gitsham on 28 October 2025 but a resolution was not achieved.

15 The Court first became aware of the defendants' intent to seek a further adjournment at 9:04am this morning by an email from Mr Sanna. Mr Sanna's email enclosed affidavits sworn by each of the second and third defendants. Mr Sanna indicated that he had assisted the defendants in preparing these affidavits in his capacity as a McKenzie friend.

16 The defendants primarily relied on their affidavits. The defendants say that they are not ready for the trial to begin as self-represented litigants, and require further time to properly defend the proceeding and prosecute their counterclaim. They say that they have made attempts to obtain funding for a solicitor and counsel, but do not suggest that they will be able to obtain funding in the future. They say that they will suffer prejudice if the trial proceeds today, because they will be prevented from having a fair opportunity to prepare and argue their case, and from obtaining whatever help they can to be ready to represent themselves at the trial. They said that they need about a month.

17 The defendants submitted that there is a possibility they may obtain the services of a pro bono lawyer based on recent inquiries. The defendants submitted that they need to obtain the files from their former solicitors. The defendants also referred to the second defendant being 73 years old.

Plaintiff's and third defendant by counterclaim's submissions

18 The plaintiff and third defendant by counterclaim oppose the adjournment application. They submitted that granting a further adjournment of the trial would operate to their prejudice, and to the prejudice of the administration of justice in this state. In short, they submitted that there is no adequate explanation for the lateness of the application, and that no adequate explanation has been given for why the defendants are unable to proceed with the trial today.

19 The plaintiff submitted that the documents filed on behalf of the defendants invite the inference that the second and third defendants have been intimately involved in the preparation of their case throughout 2024 and 2025. They also referred to equity in the secured property being diminished.

Defendants have had more than reasonable time to prepare their case

20 The defendants have had more than reasonable time to prepare their case.

21 First, the proceeding was issued four years ago.

22 Second, extensive material has been filed on their behalf. This includes detailed outlines of their expected evidence, a substantial opening submission, a chronology and list of issues. It is reasonable to infer that this material was filed upon the defendants giving instructions to their solicitors at the time and considering the underlying documents, for example, those referred to in the witness outlines and the joint chronology.

23 Third, to the extent that they are now unrepresented, they have known of that possibility for at least a week.

24 Fourth, the defendants were invited to urgently contact the Court's self-represented litigants coordinator in the order made by the Honourable Justice Garde on 22 October 2025.

25 Finally, if the defendants are given a further week to prepare this would be more than reasonable and adequate in the circumstances.

26 The defendants will not be substantially prejudiced if the proceeding is not adjourned for about a month, but is adjourned for a week.

27 First, I accept that the defendants are now not represented.

28 Second, the defendants do not identify with any precision why they are not ready for trial.

29 Third, the defendants do not identify with any precision what steps they need to take to prepare for the trial or why this will take them a month.

30 Fourth, the defendants say that they need time 'to develop a better understanding of the trial process, a better understanding of the pleadings, a better understanding of all of the submissions, a better understanding of all of the authorities, preparation in how to cross-examine witnesses, etc.' To the extent that they do not have such an understanding at present, a week is more than sufficient time to obtain such an understanding, especially in the circumstances in which this dispute has been before the Court for approximately four years. The defendants do not say that they need more time to understand the facts.

31 Fifth, the plaintiff's case is now relatively confined. I refer to the parties' opening submissions. The substantial issue between the parties, on the plaintiff's case, is the circumstances of a $204,500 payment made by the defendants and whether this payment was made in repayment of the plaintiff's loan or something else. I accept that the defendants' counterclaim is more complex.

32 Sixth, the defendants may be readily guided and assisted by documents filed on their behalf. As I have said, this includes detailed outlines of their expected evidence, a substantial opening submission, a chronology and list of issues.

33 Seventh, I consider that one week is more than sufficient time for the defendants to prepare their case. As the third defendant said, he knows this case 'fairly well'. It is apparent from the conduct of the hearing to date that the second defendant seeks to rely, at least in substantial part, upon the third defendant to conduct the defence and prosecute the counterclaim.

34 Eighth, the defendants submitted that they need time to obtain the file of their former solicitor. But they did not explain why they require this material with any precision, or any attempts to obtain it or when they are likely to obtain it. In addition, there is a court book. The defendants have the court book as they refer to in their affidavits. But if they do not have the court book I will arrange for a copy to be given to them forthwith.

35 Ninth, the defendants submitted that there is a possibility that they may obtain the services of a pro bono lawyer. But they did not identify the lawyer, the steps taken to obtain their services or the likelihood of this occurring. They have also had more than an ample opportunity to obtain those services.

36 Tenth, to the extent that it is suggested that the second or third defendants have any present work commitments that prevent them from preparing for trial, this matter has been set down for trial for a considerable period of time and they could have readily made arrangements to be available.

37 Eleventh, to the extent that it was suggested that the second defendant's age means that he requires more time for preparation, this was not further developed. In addition, as I have already said, it is apparent from the conduct of the hearing to date that the second defendant seeks to rely, at least in substantial part, upon the third defendant to conduct the defence.

38 Finally, any possible prejudice that may result from the defendants appearing without representation may be comfortably addressed by procedural assistance afforded by this Court during the trial, as is the ordinary and necessary course taken to afford procedural fairness to self-represented litigants.

Prejudice to the plaintiff and the third defendant by counterclaim

39 The plaintiff and third defendant by counterclaim will be prejudiced by an adjournment of a further month.

40 First, this will unreasonably delay the determination of the proceeding. The proceeding was issued almost 4 years ago. The plaintiff's claim relates to events in 2020. The defendants' counterclaim relates to events in 2019 and 2020. The trial has already been adjourned as a result of circumstances of the defendants' former solicitors. A delay of a month is substantial.

41 Second, any further adjournment of this proceeding will inevitably cause further stress and inconvenience to the plaintiff and the third defendant by counterclaim. They are not corporations.

42 Third, further costs will be wasted. The plaintiff and the third defendant by counterclaim submitted earlier this week that the defendants have not paid the costs ordered to be previously paid by them in a fixed sum on 29 August 2025. On 27 October 2025, the Court ordered the defendants to pay the costs of the plaintiff and the third defendant to counterclaim occasioned by the adjournment that day in a fixed sum. In any event, a further costs order will not address the prejudice to the plaintiff and third defendant by counterclaim in any meaningful way.

43 Finally, I accept that an adjournment of one week will also be a prejudice to the plaintiff and the third defendant by counterclaim. I have taken this into account.

44 A further adjournment of the trial, especially for a period of one month, would result in a substantial inefficient use of the Court's resources. It is a publicly funded resource. The Court has set aside the time to hear and then determine this proceeding. If the case is adjourned for a month then all of this time will be lost. As a result, the Court has not listed other cases. An adjournment of the trial will be a substantial waste of court resources. An adjournment for a week will also mean that there will be an inefficient use of the Court resources, but it will not be as significant.

45 A further adjournment of the trial for a month would undermine public confidence in the judicial system. The public expects the Court to hear and determine proceedings in a just, efficient, timely and cost-effective manner. For the reasons, I have addressed above, granting an adjournment for a month will not be just, efficient, timely or cost-effective.

46 In all of the circumstances, having regard to the factors I have addressed, I am of the view that it is in the interests of justice that the application for an adjournment of a month should be refused, but that it should be adjourned until 5 November 2025. This is also the course that best serves the overarching purpose of the Civil Procedure Act 2010, 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'.[3] This is more than adequate time for the defendants to prepare and present their case.

47 I will dismiss the defendants' application for an adjournment for a month but adjourn the trial to 5 November 2025.

LINO ADRIAN CHIAVAROLI (ALSO KNOWN AS LEIGH ADRIAN CHIAVAROLI)

LINO ADRIAN CHIAVAROLI (ALSO KNOWN AS LEIGH ADRIAN CHIAVAROLI)

BRETT COVERDALE (IN HIS PERSONAL CAPACITY AND AS TRUSTEE FOR THE COVERDALE BOURKE SUPERANNUATION FUND)

MARY-ANNE BOURKE (IN HER CAPACITY AS TRUSTEE OF THE COVERDALE BOURKE SUPERANNUATION FUND)

[1] Rule 1.17 of the Supreme Court (General Civil Procedure) Rules 2025 (the Rules).

[2] [2025] VSCA 58.

[3] Civil Procedure Act 2010 (Vic) s 7(1).