Nora Goodridge Investments Pty Limited v Teplitsky; Teplitsky v Nora Goodridge Investments Pty Limited [2024] NSWSC 1397

Supreme Court New South Wales

Medium Neutral Citation: Nora Goodridge Investments Pty Limited v Teplitsky; Teplitsky v Nora Goodridge Investments Pty Limited [2024] NSWSC 1397 Hearing dates: 1 November 2024 Date of orders: 1 November 2024 Decision date: 01 November 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Commercial List Response struck out; Commercial List Cross-Summons and Commercial List Cross-Claim Statement dismissed; judgment for plaintiff/cross-defendant against defendant/cross-claimant Catchwords: CIVIL PROCEDURE – summary disposal – judgment for plaintiff against defendant – dismissal of cross-claim – List Response struck out – where defendant/cross-claimant has failed to serve evidence in accordance with court orders and appears to have ceased to engage in the proceedings Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Nora Goodridge Investments Pty Limited (Plaintiff/Cross-Defendant) Michael Teplitsky (Defendant/Cross-Claimant) Representation: Counsel: N Condylis (Plaintiff/Cross-Defendant) J Kosmin (solicitor) (Defendant/Cross-Claimant)

Solicitors: K&L Gates (Plaintiff/Cross-Defendant) Kosmin & Associates (Defendant/Cross-Claimant) File Number(s): 2023/243114

EX TEMPORE JUDGMENT (REVISED) 1. The plaintiff brings these proceedings against the defendant, Mr Teplitsky, arising from the alleged execution by the defendant of guarantees. 2. Mr Teplitsky has filed a List Response and a Cross-Claim which makes a number of allegations which are somewhat hard to follow but appear to include a contention that he did not sign some of the relevant documents, that he was labouring under a cognitive impairment of some kind and that the sale of a secure property was at an under value. 3. The plaintiff served its evidence as long ago as 22 May 2024. Mr Teplitsky has served no evidence despite a number of orders that he do so. Mr Teplitsky remains represented by Mr Kosmin who, as a courtesy to the Court, has appeared today to inform me that Mr Teplitsky instructed him to consent to judgment, and then provided Mr Kosmin an array of medical evidence, none of which was recent. 4. The fact is Mr Teplitsky appears to have ceased to engage in the proceedings and, as I say, has failed to comply with a number of orders that he file evidence. Most recently, the plaintiff's solicitor, Mr Webster, wrote to Mr Teplitsky's solicitor on 11 October 2024, stating, relevantly: "1. Your client continues to breach the orders of the Court by his failure to file and serve his evidence. 2. NGI's evidence was served on 20 May 2024. On 24 June 2024, orders were made extending the time for your client to file his evidence in response to NGI's evidence and in support of his cross-claim to 12 July 2024. On 16 August 2024, further orders were made extending the time until 27 September 2024. 3. Your client has still failed to file any evidence. 4. K&L Gates' has received no response to its emails of 27 September 2024 or 30 September 2024 enquiring as to the status of your client's evidence. 5. It appears that the Defendant no longer intends to (or can) defend the claim. 6. As such, we invite the Defendant to agree to judgment in NGI's favour. We attach a proposed form of consent judgment for the defendant to file and return. We also attach a spreadsheet showing the calculations of the judgment sum. 7. Please sign and return the consent judgment. 8. If judgment is not entered by consent, the Plaintiff will move the strike out the Defendant's defence and cross- claim, and seek summary judgment. 9. Please revert to me on Monday." 1. As Mr Condylis, who appears for the plaintiff, has submitted, Mr Webster could not have been clearer about the steps that the plaintiff proposed to take. 2. The plaintiff has now brought a motion seeking to strike out Mr Teplitsky's List Response and Cross-Claim on the grounds of a failure to proceed with due despatch under UCPR 12.7 and to enter judgment. 3. I am persuaded that I ought make those orders. 4. However, in view of what Mr Kosmin has informed me, I propose to qualify those orders by granting Mr Teplitsky liberty to apply to set the orders aside on a specified basis. 5. I make orders 1 to 5 in accordance with the plaintiff's short minutes of order, which reflect the substance of the orders sought in the plaintiff's Notice of Motion of 18 October 2024. 6. I grant Mr Teplitsky liberty to apply to seek to have those orders discharged, such liberty to be exercised by 5pm on 8 November 2024 and to include evidence as to why Mr Teplitsky has not complied with the Court's orders concerning his evidence, and as to the basis upon which he proposes to defend the proceedings and prosecute any cross-claim.