42. 2009 – My Australia

I offered my back to the floggers and my cheeks to those who pluck out my hair; I did not hide my face from humiliation and spitting. For the Lord will help me; therefore, I am not disgraced; therefore, I have set my face like flint and I know that I will not be ashamed. He who vindicates me is near.

In an affidavit made by him on 28 April 2009, the civil engineer Phillip Johnston stated that what he had seen in 2001 had showed the the eastern wall was not built into a straight line. It was not bowed or rotated. In fact the wall’s direction changed throughout its entire length.

He further noted that his sketch which appears in the Structural Details dated 7 June 2002 showed that the change in direction of the wall was built into it.

Finally he noted that when had inspected the premises on 1 June 2001 there had been no gap between the walls and the first floor ceiling, and he had therefore concluded that neither the first floor joists had had moved or pulled away from the eastern wall.

He concluded that the lack of any separation or relative movement was evidence that the wall had not bowed or rotated, and those factors could not be used as reasons to claim that the wall was structurally unsound.

On 14 October 2009 Justice Nicholas, sitting in the Supreme Court of NSW, issued a Judgement ex tempore in the case of 6636/04 Bodenstein v Voukelatos & Anor.

Before him had been a notice of motion, filed on 9 October by the defendent, Mr Z. Voukelatos and others, seeking orders that the case be dismissed. The ground for this request was Rule 12.7 in the Civil Procedure Act which enables the dismissal of proceedings where it has been found that the plaintiff does not prosecute them with due dispatch.

Nicholas summarised the background of the case, as follows:

The proceedings had been begun by a summons submitted by the plaintiff, Mr Amir Bodenstein, in December 2004, which included a claim for damages. The claim was reformulated in Bodenstein’s subsequent statement of claim filed on 14 December 2008, in which he claimed damages for misrepresentation of structural capacity of the wall of restaurant premises leased to him by Voukelatos.

The matter was listed for a three day hearing before Justice Austin, commencing on 16 February 2009. On that day Bodenstein successfully applied for the hearing date to be postponed due to him having been recently served with two affidavits by the defendent Voukelatos, which Bodenstein needed more time to consider.

The delay was granted, with the judge noting, however, that Bodenstein had filed to comply by the due date with the Registrar’s order to file a statement of claim and affidavits in support. An affidavit had been finally filed on 30 January 2009.

Austin stood the matter before the Registrar on 16 March 2009 and the plaintiff directed to file any further affidavit by 9 March.

The matter was listed for a three day hearing commencing on 2 November. Bodenstein failed to provide the exhibits by the due date.

In a directions hearing on 22 September the plaintiff failed to appear but the defendent was represented. The matter was stood over for further hearings on 14 October.

On 22 September Voukelatos’s solicitor sent Bodenstein a letter, which included a warning that he intended to apply for leave to have proceedings struck out for the latter’s failure to comply with previous directions.

A process server acting for Voukelatos attempted unsuccessfully to serve a letter to Bodenstein at the address the latter had given to the Court: 5/5 Lower Fort Street, Sydney. The Court posted a letter to the same address but the letter was returned marked “Left Address”.

Voukelatos sent a further letter to Bodenstein at the same address, advising that Bodenstein’s exhibits had not been received and the former intended to have the proceedings dismissed. Voukelatos received no communication or material back from Bodenstein.

On 14 October, Bodenstein did not attend the hearing in the NSW Supreme Court. The Court had, however, on the day before received a fax from Dr Brenner, of St Vincent’s Mental Health Service, asking if Bodenstein could be exempted from civil court proceedings for one month, due to his ongoing medical treatment at the facility.

Justice Nicholas noted the long history of this litigation and Bodenstein’s history of failure to attend directions hearings and in the conduct of his proceedings, including by his applications for legal aid and pro bono assistance.

He noted that the defendents, Mr Voukelatos and others, had expressed concern at the continued delay.

Nicholas concluded that there was a lack of compliance by Bodenstein of various orders and an associated lack of communication by him with both Voukelatos and the Court. He discounted the letter from St Vincent’s Mental Health Service.

Nicholas noted that the defendents had had to support the cost and inconvenience of attending the court with the representatives on “numerous ” occasion, and with more to come, and an uncertainty whether the proceedings would actually finally occur on the appointed day or not.

Justice Nicholas therefore ordered that “summons in these proceedings and in the statement of claims be dismissed” and that Bodenstein pay Voukelatos’s costs in the proceedings.

The proceedings were then stood over to 2 Novmber 2009 to allow for the hearing of a cross claim by Mr Voukelatos.

Contents
1. My Australia 

1. My Australia

Mr Johnston states that the wall was not built in a straight line and that the wall was not bowed or rotated.

28.04.09 Affidavit of Phillip Johnston

“5. I refer to page 3 of the report made by me dated 25 June 2001.

Regarding ‘bowing’ and ‘rotation’ of the wall, the wall was not built in a straight line. The direction of the wall changes throughout its entire height, at a point about 4.5 meters from Glebe Point Road. The sketch which appears on the Structural Details dated 7 June 2002 shows the approximate location of the change in direction of the wall was built into it. The wall was not bowed or rotated.”

“6…When I inspected the premises on 1 June 2001, I saw that there was no gap between the walls and the first floor ceiling, and I therefore concluded that neither the first floor joists had moved or pulled away from the eastern wall. That is what is described by me in the last sentence of paragraph 2.1 of the report dated June 2001. The lack of any separation or relative movement was evidence that the wall had not bowed or rotated, and those factors could not be used as reasons to claim that the wall was structurally unsound.

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