Cameron v Franks [2023] NSWSC 437

Cameron v Franks [2023] NSWSC 437

The Court declined to adjourn the hearing on the informal notice alone because the defendant did not appear and the material did not properly establish the asserted medical inability to attend, while the plaintiff and his witnesses and lawyers were ready and had incurred costs. The Court received the plaintiff's evidence and concluded that, subject to further order, the plaintiff was in principle entitled to the s 66G orders and to dismissal of the cross claim for non-appearance. However, to preserve procedural fairness and avoid final orders in circumstances where the defendant might later prove a genuine inability to attend, the Court stood the proceedings over part heard and gave the...

Jurisdiction
Australia
Judgment Date
28 April 2023
Procedural Posture
Equity Proceedings Seeking Appointment of Trustees for Sale Pursuant to S 66 G of the Conveyancing Act 1919 (nsw), With Cross Summons Concerning an Alleged Agreement / Procedural Ruling on Informal Adjournment Application on the Day of Hearing; Proceedings Stood Over Part Heard
Outcome
Informal adjournment application declined; plaintiff held in principle entitled to relief; proceedings stood over part heard; defendant granted leave to file a formal notice of motion within 21 days with supporting evidence.
Legal Topics
['adjournment' 'co Ownership' 'statutory Trust for Sale' 'pro Bono Legal Assistance' 'cross Claim' 'want of Prosecution']
['civil Procedure' 'land Law' 'equity'] ['adjournment' 'co Ownership' 'statutory Trust for Sale' 'pro Bono Legal Assistance' 'cross Claim' 'want of Prosecution']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Appointment of Trustees for Sale Pursuant to S 66 G of the Conveyancing Act 1919 (nsw), With Cross Summons Concerning an Alleged Agreement / Procedural Ruling on Informal Adjournment Application on the Day of Hearing; Proceedings Stood Over Part Heard

Legal Issues

  1. 1 ['Whether the hearing fixed for 17 and 18 April 2023 should be adjourned on the basis of informal notice that the defendant was in hospital and lacked legal representation.' 'Whether the plaintiff was in principle entitled to orders appointing trustees for sale under s 66G of the Conveyancing Act 1919 (NSW).' "Whether the defendant's cross claim should be dismissed by reason of his non-appearance and failure to prosecute it." 'What procedural orders should be made to secure the just, quick and cheap resolution of the proceedings while preserving procedural fairness to the defendant.']

Ratio Decidendi

The Court declined to adjourn the hearing on the informal notice alone because the defendant did not appear and the material did not properly establish the asserted medical inability to attend, while the plaintiff and his witnesses and lawyers were ready and had incurred costs. The Court received the plaintiff's evidence and concluded that, subject to further order, the plaintiff was in principle entitled to the s 66G orders and to dismissal of the cross claim for non-appearance. However, to preserve procedural fairness and avoid final orders in circumstances where the defendant might later prove a genuine inability to attend, the Court stood the proceedings over part heard and gave the...

Court Disposition

Informal adjournment application declined; plaintiff held in principle entitled to relief; proceedings stood over part heard; defendant granted leave to file a formal notice of motion within 21 days with supporting evidence.

Orders

  • ['The Court notes that the Court declined on 17 April 2023 to adjourn the hearing of these proceedings that was fixed to occur on 17 and 18 April 2023 on the basis of the informal notice given to the Court that the defendant wished to make an application that the hearing be adjourned and that he was unable to appear...