Ryan v Allianz Australia Insurance Limited

Parties: Plaintiff/Applicant: John William Ryan
Defendant/Respondent: Allianz Australia Insurance Limited

Representation: Counsel:
Plaintiff/Applicant – Dr Blount, S.
Defendant/Respondent – Mr Simone, N.
Solicitors:
Plaintiff/Applicant – Green & Associates Solicitors
Defendant/Respondent – Hall & Wilcox Lawyers

File Number(s): 2023/00304387

Publication restriction: Nil.

Judgment

1. HIS HONOUR: These proceedings were commenced by a statement of claim filed on 25 September 2023, some two years and five months ago. The nub of the plaintiff's claim is an action for damages against an insurer for breach of contract. The insurer issued to the plaintiff and his then-wife a policy of insurance for a house and its contents near Wallaby Hill Road, Jamberoo. According to paragraph 6 of the statement of claim, in or about March 2022, damage was caused to that property as a result of a severe storm by way of 'violent wind, thunderstorms, rain, and lightning' which was an insurable event under the policy for which coverage was to be afforded by the defendant. As I understand it, the insurer paid for damage to the contents of the property, but not for damage to the house itself. It would appear from what I have read so far that the house was erected on property that did not belong either to the plaintiff or his late wife. A house is generally regarded as a fixture, and the principles regarding fixtures can be summed-up in the maxim, quicquid solo plantatur solo cedit, what is planted in the soil belongs to the soil. It is to recover the indemnity promised by the insurer for which the plaintiff sues.

2. An amended defence was initially filed on 31 March 2025, and a reply was filed to the amended defence on 27 May 2025. By leave granted by the list judge, Dicker DCJ, on 25 February 2026, the defendant filed a further amended defence on 27 February 2026. I shall return to that pleading shortly. In the meantime, it has to be noted that on 30 June 2025, that is almost nine months ago, the Court set this matter down for hearing for five days commencing yesterday, Monday 16 March 2026. What is currently before me is a notice of motion filed by the plaintiff on 13 March 2026, that is last Friday, at 3.58pm. The motion seeks a number of orders. The first is that the hearing listed to commence yesterday be adjourned to a date yet to be determined. The second is an order that the plaintiff be granted leave to file and serve a reply to the further amended defence. The third was an order that the costs of the notice of motion be costs in the cause, a completely unnecessary order as costs will follow the event, and the pleading of costs orders is unnecessary under the rules. The fourth order sought is an order that a notice to admit facts and authenticity of documents issued by the defendant on 3 March 2026 be set aside without prejudice to its reissue at a later date. The final order sought was that the subpoenas issued by the defendant on 27 January 2026 be returnable on the first day of the new hearing date to be fixed by the Court.

3. I had an opportunity to start reading the material on Monday before I went onto the bench. The major evidence in support of the notice of motion is an affidavit of Dominic Green, a solicitor, affirmed on 13 March 2026, that is on Friday of last week on the day that the notice of motion was filed. I read through its lengthy 74 paragraphs over 16 pages. I quickly came to the view that, in effect, the plaintiff was seeking to have me deal with an appeal against the decision of Judge Dicker, who granted the plaintiff leave to file and serve the further amended defence that was in fact served on 27 February last year. There are other reasons put forward by Mr Green in his affidavit.

4. However, it is convenient at this stage to deal with the complaint he made about the second amended defence filed on 27 February 2026. It is clear from the reasons published by Judge Dicker that he thought the amendments were minor, and in that regard, I wholly concur. They change nothing. For example, paragraph 4(i) was this:

"…the Defendant entered into the Agreement in reliance on the representations made by the Plaintiff at the time of entering into the agreement and on the assumption that such representations were true and correct."

The amendment made in the second amended defence is to add the words "and the Tenant", the Tenant being a reference to the plaintiff's late wife.

5. Paragraph 5 of the amended defence was this: "It admits paragraph 5 and says further that the Plaintiff also owed an implied duty to act toward the defendant with the utmost good faith". Added to that after the words "the Plaintiff" have been inserted the words "and the Tenant". It is hardly controversial that a contract of insurance is one uberrimae fidei, of the utmost good faith. It is common ground that the insurance was issued jointly to the Plaintiff and his late wife or as she is referred to in the pleadings as the "Tenant".

6. Paragraph 45 of the original amended defence was this:

"On or about 4 February 2021, the Plaintiff submitted an application for insurance to the Defendant (the Application).

Particulars

The Application was submitted by the Broker as agent of the Plaintiff and the Tenant via the online application form. All communication between the Defendant and the Plaintiff and the Tenant was between the Defendant and the Broker, acting as agent for the Plaintiff and the Tenant."

That has been amended in the second amended defence by adding the words, "and the tenant" after the words "the Plaintiff" in the chapeau of the clause. The particulars have not been altered at all. The amendment to the chapeau merely reflects what is contained in the particulars.

7. In paragraph 46, this was alleged in the amended defence and is continued in the second amended defence:

"In the Application, the Plaintiff and the Tenant represented to the Defendant that the Insured Property was Owner Occupied (the Ownership Representation).

Particulars

The Broker applied for the policy via an online system named 'Sunrise' which asks specific questions. One of the questions asked is, 'property occupancy' and the Broker entered the answer: 'Owner Occupied'. This response was recorded as the 'Record of Answers' given on behalf of the Plaintiff and the Tenant."

That ought have made it abundantly clear to any thinking person that the defendant was saying that the representations made by the broker were on behalf of both the Plaintiff and his late wife. That was in the amended defence. The second amended defence was merely cleaning up some infelicities. For example, the chapeau to paragraph 47 of the amended defence was amended from this:

"In making the Ownership Representation, the Plaintiff and the Tenant made a misrepresentation and breached the Duty, which constituted a 'relevant failure' under s 27AA of the Act."

That has been amended by adding between the words "the Plaintiff and the Tenant" a backslash after "and" and inserting after the backslash "or".

8. Just to ram home the concept that no one could be taken by any surprise by the amendments made in the second amended defence, one should have regard to paragraph 50 of the amended defence which is in the following terms:

"In the Application, the Plaintiff and the Tenant represented to the Defendant that the Insured Property was not poorly constructed or badly maintained (the Construction and Condition Representations).

Particulars

The Broker applied for the policy via an online system named 'Sunrise' which asks specific questions. One question asked was whether the building was poorly constructed, badly maintained, was subject to a demolition order to which the broker entered the answer, 'No'. This response was recorded as the 'Record of Answers' given on behalf of the Plaintiff and the Tenant."

I suppose that could have been amended by putting after the word "and" between the Plaintiff and the Tenant on two occasions a backslash and an "or" but that was not attended to.

9. A further amendment made by the second amended defence was again insertion of a backslash then "or" in the chapeau of paragraph 52 of the amended defence. Originally, paragraph 52 was this:

"Had the Plaintiff and the Tenant not breached the Duty by making the Construction and Condition Representations, the Defendant would not have entered into the Agreement.

Particulars

The Defendant would not have entered into the Agreement with the Plaintiff and the Tenant to ensure the Insured Property against building loss and damage if the Defendant was aware of the matters outlined in the particulars to paragraph 52. The Defendant, if aware of those matters, would have regarded the Insured Property as being poorly constructed, poorly maintained and not watertight and would not have agreed to insure the Insured Property building."

Again, the chapeau commences in the second amended defence in this fashion, "Had the Plaintiff and/or the Tenant not breached…". The amendments were all minor and there is no cause for any complaint.

10. In paragraph 12(a) of Mr Green's affidavit he speaks of his commitments on the 27 January 2026. In paragraph 12(b) he refers to his commitments on the 28 January 2026. In paragraph 12(c) he speaks of his commitments on the 29 January 2026. In paragraph 12(d) he refers to his commitments on 30 January 2026. In paragraph 12(e) he refers to his commitments on 31 January 2026 and the 1 February 2026 which was a weekend. In paragraph 12(f) he stated this:

"Finally, I was prepared also for appearances upcoming on Friday 6 February 2026 in two of the Expedited Matters", and a substantive hearing in NCAT of a related application made in one of those Expedited Matters."

He then says this in paragraph 13 of his affidavit:

"The effect of those overlapping court appearances, conferences, urgent interlocutory work, affidavit preparation and client commitments was that the period between the filing of the proposed Further Amended Defence and the hearing was compressed by competing matters of genuine urgency and significance. It was not deliberate."

11. This appears to be an excuse as to why he did not raise some more detailed objections at the hearing before Dicker J on 25 February 2026. However, as I have sought to point out, the amendments made by the second amended defence were minor and of no substance in the sense that they did not change anything of which anyone had previously been made aware. According to paragraph 19 of Mr Green's affidavit, the amendments made:

"...have added new allegations of contractual statutory significance as to the alleged misrepresentations made by the deceased former spouse of the Plaintiff, without providing any particulars at all."

The only problem is that particulars were requested by the Plaintiff of the second amended defence and were supplied by the defendant on the same day. There was no change of substance at all. Even if one of the Plaintiff and/or his spouse spoke with the broker, who was retained to obtain the insurance cover for them, then the principle of agency would apply: qui facit per alium facit per se. In any event, the allegation always has been that the broker was retained not by the Plaintiff 's now-deceased spouse but by him.

12. In paragraph 20 of his affidavit, Mr Green complains - and I use that word advisedly - about the effect that the amendments might have on related proceedings still on foot between the Plaintiff and the estate of his deceased wife, being an application in the Federal Circuit and Family Court of Australia for a property adjustment under the Family Law Act 1975 and a "place-holding application for a family provision order under the Succession Act 2006 (NSW) in the Supreme Court of NSW filed by the Plaintiff so as to preserve his right to make such an application before the expiry of the limitation period." However, nothing of any substance has changed. If that were the case, it should have been drawn to the attention of Dicker J, and he could have dealt with it.

13. It is patently clear that the Plaintiff's solicitors have done nothing to prepare this case for hearing. For example, on Monday 26 January 2026 at 5.53pm, the defendant's solicitor sent an email to Mr Green and copied it to another lawyer working in Mr Green's office. The substance of the email is this:

"As you are aware, this matter is listed for a Hearing commencing on 16 March 2026. So that appropriate steps may be undertaken to prepare for the Hearing, could you please advise:

1. Whether your client intends to rely on O'Donnell's original report at the Hearing in circumstances where no reply evidence has been served. Subject to receiving your client's confirmation, the parties will likely need to arrange for an expert conclave to occur in accordance with Annexure A - Standard Order for Hearings contained within District Court Civil Practice Note 16.

2. Whether your client will consent to an application being made to the Court for Mrs Harris to attend the hearing by way of AVL pursuant to practice note DC[Civil] 1C. In the event that your client does not consent, please provide the reasons why.

3. Whether your client intends to undertake preparation of the Court Book.

We look forward to your prompt response."

14. Not only was there no prompt response, there was no response at all. On 28 January 2026, the defendant's solicitors wrote to the plaintiff's solicitors, again reminding them of the five-day hearing commencing on 16 March. The letter continues thus:

"The purpose of this letter is to serve as formal notice pursuant to rule 31.29(2) and rule 35.2(1) of the Uniform Civil Procedure Rules 2005....that we require attendance from your client's witnesses (including expert witnesses) for cross-examination at the hearing.

For the avoidance of doubt, please ensure the following witnesses will be in attendance and available for cross-examination:

1. The plaintiff, John Ryan;

2. Alexandra Green;

3. Melanie Smith;

3. Paul O'Donnell;

4. Vince Neil; and

5. Elizabeth Harris (if you intend to rely on the affidavit you drafted for her).

We enclose by way of service, subpoenas that have been issued to O'Donnell, Neil and Mrs Harris in accordance with the UCPR."

The annexures are incorporated in the copy of the correspondence that is before me.

15. On 3 March 2026, the defendant issued to the plaintiff a notice to admit facts and authenticity of documents in accordance with the Rules. On 4 March 2026, the defendant's solicitor sent an email to the plaintiff's solicitor, the substance of which is this:

"Our client is well advanced in the preparation of this matter for trial in accordance with the standard orders for hearings contained within Annexure A Standard Orders for Hearing - District Court Civil Practice Note 16...

Can you please advise if you consent to an AVL application being made for the following to attend the hearing:

1. Liam Campion;

2. Rachelle James – Allianz; and

3. Martin Yan - Allianz.

Could you please advise which of our client's witnesses your client intends to call for cross-examination so that arrangements can be made.

If no response is received by 5pm tomorrow, 5 March 2026 then we will assume they are not required.

As you are aware, it is standard practice for a Court Book to be prepared as well as a joint memo of issues and facts, chronology, Scott schedule, disputed objections and written submissions.

Please advise when your client expects to provide a draft of the joint memo of issues and facts noting it is due to the Court mid next week.

The Practice Note also requires the plaintiff's solicitor to prepare a full chronology of relevant events. Can you please confirm if this is being prepared.

Please also advise when your client expects to provide us with a Scott schedule, disputed objections, and written submissions."

To that communication, the plaintiff made no response. The defendant annexed to that email a copy of the District Court Civil Practice Note 16, dealing with case management in the general list, I shall return to that a little later.

16. On Wednesday 11 March 2026, Assistant Registrar Mary O'Connell made a telephone call to the defendant's solicitor who made this email note:

"Mary returned my call. She said she was just reviewing the matter and wanted to check on the status noting it's listed for trial next week. Is it going ahead? I said to my knowledge it was. She confirmed that there had been no settlement, and I said that that was correct. She asked me who counsel was - I indicated Nicholas Simone. She asked if I could explain the interested party bit to her - I said the estate's lawyers for the former second defendant, Fay Ryan - limited to subpoena issues only. She confirmed I wasn't expecting an appearance from them, and I said no. I asked if her call was in anticipation of a judge being allocated, and she confirmed it was, and she was just sorting all of that out now. She asked if five days was still appropriate, and I said yes."

17. On Thursday 12 March 2026 at 10.11pm, the defendant's solicitor wrote to the plaintiff's solicitor an email enclosing a chronology drafted by the defendant in accordance with Civil Practice Note 16. No chronology has ever been prepared by the plaintiff. On the same day at 10.12pm, the defendant's solicitors sent to the plaintiff's solicitor a list of objections made by the defendants in accordance with the District Court Civil Practice Note 16. At 10.13pm on the same evening, the defendant's solicitor sent to the plaintiff's solicitors an outline of the defendant's opening in accordance with Civil Practice Note 16. On 13 March 2026 at 1.15pm, the defendant filed an electronic court book for this matter to comply with the requirement that the parties submit a court book to the Court. I understand the court book comprises some six lever arch binders of documents. In short, the defendant has done everything to prepare the case for hearing and the plaintiff has done nothing.

18. The next thing that occurred is that on Friday 13 March 2026 at 11.04am, the plaintiff's solicitors through Ms Riva Thapa, a graduate lawyer, but not yet admitted to practice, wrote a letter to the Associate to his Honour Judge Dicker. The letter was this:

"We act for the plaintiff in these proceedings. The defendant's solicitors are copied to this email.

The plaintiff seeks to bring an urgent application for the adjournment of the hearing currently listed to commence on 16 March 2026. We respectfully request that the application be listed before his Honour Dicker J this afternoon, at a time convenient to the Court.

We apologise for raising this matter at a late stage. In fairness to our learned friends, we have not been in a position to formally notify them earlier, as we had been awaiting final medical documents necessary to support the application which we only received at 9.29am today. Until this morning, we did not have a confirmed diagnosis despite taking urgent steps to obtain appropriate medical assessment and reporting. Mr Green has been wholly bedridden over the weekend, and the necessary medical investigations and reporting were only completed this morning. The final specialist report will be exhibited to the affidavit filed in support of the plaintiff's Notice of Motion seeking an adjournment.

We are currently finalising the Notice of Motion and supporting affidavit, and counsel has now been briefed to appear… at this Motion hearing. The Notice of Motion and affidavit in support will be provided to the Court and to our friends as a matter of urgency.

We have, however, contacted the Registry listings desk on two occasions earlier this week to inform the Court of the developing situation and to indicate that an application would be brought as soon as possible.

If possible, we respectfully propose that the application be listed at around 3pm today. That timing may allow both the Court and the parties a reasonable opportunity to read and consider the material and may be the most practical course given his Honour's existing matters on the list being more urgent.

We apologise again for the short notice to the Court, and to the solicitors for the defendant."

I should indicate that the inquiries referred to in the antepenultimate paragraph of that letter were made by Mr Dominic Green himself on the Wednesday and Thursday of the week preceding that Friday. That is clear from his affidavit.

19. Nevertheless, despite giving notice of the proposed notice of motion at 11.04am last Friday, the notice of motion was filed at 3.58pm, two minutes before the close of ordinary business of the Registry, completely impracticable. On Friday afternoon, Dicker J brought the matter to me and asked me to deal with it because he had not had an opportunity to deal with the notice of motion seeking the adjournment.

20. The issue of Mr Dominic Green's health is another matter relied upon by the plaintiff. It ought be noted that the plaintiff is, in fact, Mr Dominic Green's grandfather. It appears that Mr Green prides himself as being a solicitor advocate, a matter for which any solicitor ought be commended. In paragraph 48 of his affidavit, of 13 March 2026, he said this:

"In [these] circumstances, whilst I considered it permissible to be involved in the oversight of the preparation of the matters by other staff at my Firm, for direct involvement in the correspondence I have been a party to and to deal with interlocutory or procedural issues and related appearances as required, I never intended to appear as the advocate at the final substantive hearing. In addition, this is a complex and involved matter with a five-day trial scheduled, and of course, it is always preferable and advisable that counsel appears at such a trial. Hence, it was always the case that counsel was to appear for the plaintiff."

It is well known in the law that a lawyer who acts for himself has a fool for a client. As a general proposition, a lawyer should also not act for a close personal relation such as a spouse or a parent or perhaps even a child as conflicts can easily occur. In his affidavit, Mr Green says this about his state of health:

"50. From the evening of 5 March 2026, I was confined to bed on four separate days as a result of that illness. On those days my condition was such that I was not able to attend work in any meaningful capacity or otherwise engage in the sustained preparation and concentration required for the conduct of this litigation. As detailed above, I was otherwise engaged literally at full capacity with other pre-existing court appearances and commitments.

51. I was not able to do virtually anything between 5 and 9 March 2026, as such, I contacted by specialist gastroenterologist on Saturday 7 March 2026 regarding my symptoms via SMS message. The reference in that message to court commitments is to the four court appearances I had scheduled this week which I had to arrange locum appearances for, and other court timetables I had to meet, and not this case.

52. While some of my symptoms improved in some ways, in other ways, my condition deteriorated further. I have had to attend St Vincent's Hospital on three separate occasions this week, have several blood and other tests undertaken and even have a CT scan.

53. As a consequence of that condition, my capacity for work was significantly reduced. In my then-present state of health, I was not in a position to undertake the physical and professional demands of appearing in court for a full day, still less to conduct a hearing expected to run for approximately five days. I am presently unable to do so. I am not physically able to attend court and conduct trial, particularly one listed for approximately five days. Exhibited to DG-3 at p 64 to 76 is true copy of my most recent medical certificate and various other medical documents, including my initial SMS communication to my specialist setting out my experience and my symptoms, some receipts for payments made for scans and tests, and the antibiotics I was prescribed with and am taking.

54. Owing to my condition, I was not even in a position to call the defendant's witnesses to attend the hearing for cross-examination, or subpoena any of them.

55. I have spoken with staff in the registry's listings desk twice this week - yesterday and on Wednesday - and indicated what the current situation was. That contact was initiated by the registry, not me. I indicated that I was still awaiting test results and advice following my CT scan, and that had taken longer than expected, and further, it was important because I needed to confidently estimate whether I would be in a position to attend court next week, and we were still urgently attempting to brief counsel to appear, with possible effect of salvaging some of the days set aside for this matter. For those same reasons, we had not informed the solicitors for the defendant of the possibility of an adjournment application, beyond what I said at the hearing of the Motion on 25 February 2026. Having said that, we were also trying to brief alternate counsel to make an adjournment application since Monday 9 March 2026 in case, and I was attempting to obtain medical answers and evidence to provide support for our position since Saturday 7 March 2026 but to no avail."

21. I have been told from the Bar table without objection there are five lawyers working in Mr Green's office and a law graduate acting as a clerk and that is the young lady who today instructs Dr Blount of Counsel who appears on this motion only, not on the hearing. It is confirmed that she has been working in Mr Green's office for three years. It is patently clear that the plaintiff's case has not been prepared at all. Why one of the other lawyers in the office could not have done so has not been explained at all. I can accept that a clerk, not yet admitted, would probably not be in a position to prepare a matter for trial but as for the other lawyers in a litigious firm, one would expect them to be proficient in preparing matters for trial. Why none of them turned their efforts to this case for trial is completely unknown.

22. What can be confidently stated is this. The second amended defence changed nothing. The position was cemented as the defendant's position in the first amended defence filed on 31 March 2025. If the plaintiff has not done anything to prepare the case since that time, which appears to be likely, then the fault lies with the plaintiff's solicitors for a neglect of almost a year. This is not the only defect in the preparation of the plaintiff's case. In his written submissions, Mr Simone said this:

"...the Vacation Motion is consistent with the conduct of the proceedings, on foot for [two years and five months] now, by the plaintiff and the plaintiff's solicitors. In that time the plaintiff has been required to show cause as to why the proceedings should not be dismissed, has breached this Court's order on at least eight prior occasions, has failed to appear at listings (including at the hearing of his own motion), has repeatedly appeared late at listings and has accrued a total of six adverse costs orders, with an estimated cost liability to date of about $66,192.10 and none of which has been paid."

23. I return to the Practice Note 16. Clauses 45 to 49 of the practice note are these:

"45. Any estimate given to the Court of the length of a hearing when the matter is allocated a hearing date must be honest and reliable, having been given earnest consideration by the parties, including by any counsel briefed for the hearing. Parties must promptly notify the Court if the estimate given for the hearing changes. Substantial underestimations of the length of a hearing may lead to costs orders against the legal practitioners pursuant to s 98 and 99 of the Civil Procedure Act 2005 or in serious cases a vacation of a hearing date.

46. Parties must expect that cases that do not finish within the time estimate provided to the Court will continue until concluded.

47. In cases estimated to take five days or more, the Court will allocate a long trial dates at the status conference or any subsequent directions hearing.

48. When a long case is fixed for trial, the Court will make every effort to ensure that it proceeds. For that reason the Court will not adjourn long cases unless there are exceptional circumstances.

49. Cases with an estimated trial time of five days or more will be listed before the Court for case management directions. Each party should be represented on that date by counsel brief on the trial or the solicitor with conduct of the case to enable all proper directions to be made."

The Practice Note also deals with adjournments. The relevant clauses of the Practice Note are these:

“57. If a hearing date is in jeopardy as a result of non-compliance with orders or intervening events, either party must immediately approach the Court by filing an affidavit in the registry. The registry will allocate a directions hearing before the Civil List Judge. The affidavit and details of the listing date and time must be served on all other parties forthwith. If adjournment of the hearing date is later sought, the Court will take any failure to approach the Court under this clause into account when considering the adjournment application.

58. The Court will only grant adjournment applications where there are very good reasons. The following will normally not be sufficient reasons for adjournment:

(a) the unavailability of counsel; or

(b) the failure to comply with the Standard Orders for Hearings or any other orders or directions made by the Court; or

(c) the failure to properly prepare the matter for hearing.

59. Parties who breach the Standard Orders for Hearings or any other Court orders may be restricted in the evidence which they can rely on at the hearing.

60. An application for adjournment of a trial or mediation is made by a notice of motion and supporting affidavit and must be made at the earliest possible opportunity.

61. Where appropriate, the Court will make costs orders in a fixed sum payable at a nominated time. The Court will, almost invariably, make an order for costs against a party whose legal representative has failed to ascertain the availability of the parties and their witnesses before taking a date for trial or mediation. The Court may call on legal practitioners to show cause why they should not pay the costs of an adjournment personally or reimburse their client for those costs."

24. I return now to the issue of Mr Green's health. I do not know his current state of health. He was prescribed a strong antibiotic which was dispensed on 11 March 2026, which was Wednesday of last week. He was told to take the antibiotic for seven days, seven days from last Wednesday is today. There is no evidence of what the state of Mr Green's health may currently be, but the fact remains that solicitors get sick from time to time as do counsel, and there are always ways for solicitors either handing on matters to their partners or their associates, or their employed solicitors or their clerks, and barristers can return briefs to their solicitors or can arrange for one of their colleagues in chambers to take the matter on with the consent, of course, of the solicitor.

25. Again, here there is no counsel retained for the hearing of this matter. It is clear that there have been two counsel retained, but two of them have been dismissed by Mr Green, and he, according to the material before me, has made "dozens of inquiries" according to paragraph 62 of his affidavit of 13 March 2026, but such language is usually hyperbolic. The names of no counsel have been mentioned at all. I was handed today a document, which has been marked exhibit C-C, of inquiries made to one member of the Bar who is known to me, as to his availability and his availabilities were given to me commencing in July of this year, not as to whether he has any availability this week or next week, or any time between now and July. The evidence concerning the inability to obtain counsel is, in my view, lacking in sufficient detail to be at all probative of a necessary element to justify the granting of an adjournment. It would appear that this matter has not been ready for a long, long time. I have no confidence from what I have read that the matter will ever be ready for trial; however, it is important the matter get on. Here, for example, the plaintiff himself is 86 years old. Exhibit D-D are some medical reports concerning him. The more recent one is from a cardiologist and bears date 17th September 2025. It says this:

"John is very breathless on mild exertion. He is visibly short of breath walking a couple of metres from the waiting room to the consultation room today. He also has moderate bilateral peripheral oedema and increase in his abdominal girth. He reports early satiety, abdominal bloating and general fatigue. He was in Hornsby Hospital in July this year for an orthopaedic operation which was complicated by hypertension leading to changes in his medications. Unfortunately, he does not recall the specific changes."

The cardiologist, Dr Lynn Khor, went on to diagnose cardiac amyloidosis. She recommended certain changes to his medication. She recommended a bladder scan and other investigations. A report from a general practitioner bearing date 16th September 2025 again refers to the plaintiff's breathlessness and refers to his having been diagnosed with cardiomegaly, that is, an enlarged heart, in 2011, hypertension in 2011, gout in 2012, gastric obstructive reflex disease in 2017, insertion of a pacemaker in 2019, the diagnosis of prostate cancer in 2020, the diagnosis of a heart failure on 6 May 2022, and the diagnosis of polycystic kidney disease on 10 February 2023. Given the plaintiff's state of health it would be in his interests to get this case over and finished as quickly as possible.

26. Equally, from the defendant's point of view, the owner of the land upon which the house in question was erected is a lady who is eighty-eight years old. According to the affidavit of the defendant's solicitor, affirmed on 15 March 2026:

"Mrs Harris, the legal owner of the Building and a key witness in this proceeding is 88 years old and we are instructed that Allianz holds serious concerns about the potential impact of any further delays on the ability of either the plaintiff or Mrs Harris to give evidence."

As ought be obvious from what I've said earlier, if this matter be adjourned and the estimate is still five days, a hearing date will not be allocated until probably the beginning of next year when the proceedings will be almost three years and four months old, and both Mrs Harris and the plaintiff will have advanced in age. It is in the interest of those significant witnesses that the case be heard and determined.

27. One might rhetorically ask what is the point of calling on a trial which is not ready to proceed from the plaintiff's point of view? However, the steps taken by the defendant to subpoena the relevant witnesses for cross-examination, and the preparation of all the paperwork necessary to make the matter ready for trial, to a large extent, alleviates that problem.

28. The application for the adjournment is without substance. It is also inimical to the interests of the plaintiff himself. The principals relating to adjournment in a matter such as this have been considered in Hamod v State of New South Wales [2011] NSWCA 375. The principal judgment was written by Beazley JA (as her Excellency then was) with whom Giles and Whealy JJA agreed. The relevant portion of the judgment commences at paragraph [131] under the heading "Principles governing a Court's discretion on an adjournment application". The defendant in particular relied on paragraphs [139] to [141], those paragraphs are these:

“139. The considerations relevant to the determination of interlocutory applications were recently considered by the High Court in Aon Risk Services Australia Ltd v Australian National University. In Aon Risk Services Australia Ltd, the Court was dealing with the rules of court of the Supreme Court of the ACT. Those rules are relevantly similar to the Civil Procedure Act, s 56 ff. Although the application in question in that case was an application to amend pleadings, the High Court addressed the concerns of case management more generally, noting the impact that substantial delay and wasted costs has on parties, the court and other litigants. Relevant to the application in this case are the comments of French CJ, at [5]:

"[T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system."

140. His Honour further stated, at [30]:

"Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes."

141. A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act, s 56. What constitutes a " just resolution " is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation. In Aon Risk Services Australia Ltd, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [98], stated:

"The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs."”

I have carefully borne the principles in mind. In my view, there is no reason to grant the adjournment sought by the plaintiff. The application for adjournment is refused. The hearing of this matter will commence at 10.30am tomorrow morning.

29. SIMONE: Your Honour, I seek the plaintiff to pay the defendant's costs of and incidental to the motion, that is because the work spans beyond today and yesterday, of course, the defendant was working hard over the weekend to respond to the late application. It also extends to witnesses who the defendant has subpoenaed and had to incur costs for the last two days, and so I would seek the order the plaintiff to pay the defendant's costs of and incidental to the motion (including witness costs).

HIS HONOUR: Yes, all right. Do you want to be heard on that, other than to say no?

BLOUNT: Plaintiff costs of and incidental to the motion, plus the two days on an ordinary basis, I have no objection to that.

30. HIS HONOUR: I order the plaintiff to pay the defendant's costs of and incidental to the notice of motion (including the hearing yesterday and today).

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