Ex-Wirrina marina manager Stephen Marks criticised amid $706,000 court claim
A District Court judge has lost his patience with an embattled businessman over his conduct in a long-running legal feud.
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A besieged former marina director, whose company is alleged to have misappropriated hundreds of thousands of dollars in fees, has been reprimanded over his conduct in a long-running legal feud with disgruntled boaties.
Seventy-five Marina St Vincent berth holders are seeking increased damages of $706,000 against the Wirrina Cove facility’s former operator New Wave Aerospace and its director Stephen Marks after a court-appointed auditor Hugh McPharlin last month found the company had overcharged boaties by $1.759m.
District Court Judge Patrick O’Sullivan last Friday was expected to hear final argument before delivering judgement in the protracted class action which has so far cost boaties more than $500,000 in legal fees and nearly $200,000 for Mr McPharlin’s audits of the marina accounts.
But NWA’s lawyers, who the court heard Mr Marks had only engaged five days earlier, sought an adjournment to allow an accountant to review Mr McPharlin’s findings.
This prompted Judge O’Sullivan to chastise Mr Marks – who was in the courtroom – for failing to meet a July 17 deadline to file any submissions ahead of Friday’s hearing.
“No written outline, not even the courtesy of an indication to my chambers that one wouldn’t be provided and so your client comes to this application with some concern on my part as to whether or not this is a delaying tactic,” he said to Mr Marks’ barrister Richard Ross-Smith.
“I do record that the conduct of Mr Marks is completely and utterly unacceptable – five weeks ago this matter was listed for today, it’s just not good enough.
“It’s not directed at you, I want to make that perfectly clear, but it is directed fairly and squarely at Mr Marks.”
Judge O’Sullivan said that the court was not “here for (Mr Marks’) convenience” and that he was expected to comply with court orders.
Mr McPharlin was engaged as an independent arbitrator to review the marina expenses to assist Judge O’Sullivan in finalising a judgment in a long-running civil case.
The berth holders' barrister Alex Lazarevich opposed a lengthy adjournment citing precedent that ruled a hearing by an arbitrator following a court ordered referral “is in effect a delegation of the conduct of the trial …”.
“It’s not an occasion … for Mr Marks to come along and say ‘well now I’ve got another accountant, now I’ve got some further evidence and so I’ll have a second bite at the cherry,” he said.
Judge O’Sullivan said he appreciated the concerns of Mr Lazarevich’s clients, reiterating that Mr Mark’s conduct had been “utterly unacceptable” but granted a short adjournment until August 17.
The State Government, which owns the marina, evicted NWA in March over its failure to pay head lease fees. Mr Marks and the government are in a separate Supreme Court dispute over the ownership of the marina’s infrastructure.