Advance Commercial Finance Ltd v Maxfield Pty Ltd & Ors [1990] QSC 321

IN THE SUPREME COURT OF.QUEENSLAND No. 944 of 1990 BETWEEN: ADVANCE COMMERCIAL FINANCE LIMITED Plaintiff MAXFIELD PTY. LTD. First Defendant RICHARD JAMES SEDDON BEAN Second Defendant JOHN ENZO MINUZZO Third Defendant EXTEMPORE REASONS - SENIOR MASTER HORTON Q.C. Delivered the Third day of September, 1990 Upon hearing of an application for summary judgment today with Mr. Eliadis appearing for the applicant/plaintiff, Mr. Mark Martin of Counsel for the respondent defendants 1 and 3, Mr. Martin asked for an adjournment until Friday, 7th September offering to pay the costs of the adjournment. The material placed before me in support of the application was a faxed copy of an affidavit by Leslie Anthony Davies, solicitor of Feez Ruthning & Co. This affidavit deposes to the fact that the initial application for summary judgment was returnable on the 9th August, 1990. This application, it appears, was adjourned by consent on the papers to the 22nd August, 1990. On 22nd August, 1990 apparently a further adjournment was granted before me adjourning it to today with a further order that the first and third defendants pay the -- 1 of 3 -- plaintiff's costs of the adjournment to be taxed. Prior to that order of the 22nd August, 1990 Henderson Trout, solicitors for the plaintiff wrote a "without prejudice" letter to Feez Ruthning, solicitors for the first and third defendants which was tendered before me as Exhibit 1. The terms of the this letter are as follows:- "We confirm that our client will consent to an adjournment of this matter to Monday the 3rd September, 1990 on the basis that your client agrees to pay our client's costs thrown away on today's application and that your client will not seek any further adjournment of the hearing of the Summary Judgment application. We note your client's acceptance of these terms." Mr. Mark Martin, Counsel for the respondent/ defendants informs me that there is a dispute about the terms of the undertaking. However, notwithstanding this dispute, there seems to have been no written response by Feez Ruthning on behalf of the first or third defendants pointing out that in fact Henderson Trout's letter of the 22nd August, 1990 did not accurately reflect the agreement. Mr. Davies' affidavit suggests in a hearsay form that following the 22nd August, 1990, there were various negotiations with Mr. Booker of the plaintiff company in an endeavour to settle the plaintiff's claim. paragraph 4:- The curious passage occurs in "Mr. Minuzzo believes an agreement was reached with Mr. Booker and as a consequence a summary judgment application would not proceed on the 3rd September, 1990." The affidavit goes to say that:- "On 24th August 1990 I received instructions from Mr. Minuzzo regarding the settlement and I caused a 'without prejudice' letter to be sent to Messrs. Henderson Tourt, the Plaintiff's solicitors, setting out the terms of the settlement." Curiously enough that letter is not exhibited. -- 2 of 3 -- The affidavit goes on to depose to a belief on information conveyed by Mr. Minuzzo that on the 29th August further discussions with Mr. Booker ensued in which further arrangements for settlement of the plaintiff's claim was discussed and in Mr. Minuzzo' s belief satisfactory arrangements were made for the further adjournment of the application of summary judgment until after the 5th September, 1990. The affidavit continues that no response was received to the "without prejudice" offer until Friday, 31st August, 1990 when a facsimile transmission from Henderson Trout denying any such settlement agreement. The application for adjournment is rendolent with humbug. It seems the defendants will attempt all forms of interlocutory manoeuvring to avoid the inevitable and I think it particularly significant that at nowhere in any of the material or any of the correspondence is there any suggestion whatsoever that Mr. Minuzzo or Maxfield Pty. Ltd. has any belief that they have any defence. Indeed, I note with interest by letter of 31st August, 1990 to Henderson Trout, Feez Ruthning had this to say:- "We are instructed that at that time it was agreed that because there had been a delay in certain finance being made available to our client, your client would arrange for an adjournment of the proceedings until after 5 September. Mr. Minuzzo expressly asked that Mr. Booker instruct you in those terms and Mr. Booker advised that this would be done." No suggestion as I have said exists that Mr. Minuzzo or Maxfield Pty. Ltd. believe they have any defence and as I have said the application seems to me merely an exercise to buy at the expense of yet another order for costs and further adjournment. Accordingly, the application for adjournment is refused. -- 3 of 3 --