Industrial Relations Commission of New South Wales in Court Session CITATION : Wexl Hydraulic Services Contracting Pty Limited and Anor v Sambah Holdings Pty Limited as Trustee for the Sambah Unit Trust and Ors [2002] NSWIRComm 84 FIRST APPLICANT: Wexl Hydraulic Services Contracting Pty Limited (ACN 079 063 289) SECOND APPLICANT: Terrence Elfar FIRST RESPONDENT: Sambah Holdings Pty Ltd as trustee for the Sambah Unit Trust (ACN 075 802 247) SECOND RESPONDENT: Builders Associated Pty Limited (formerly Torrens Aloha Pty Ltd) PARTIES : (ACN 002 005 370) THIRD RESPONDENT: Suncorp-Metway Limited (ACN 010 831 722) FOURTH RESPONDENT: Tibor Leslie Balog FIFTH RESPONDENT: Danco Pty Limited (ACN 008 464 980) SIXTH RESPONDENT: Dr Moreven Dan FILE NUMBER: IRC 2735 of 2001 CORAM: Schmidt J CATCHWORDS : Unfair contract - notice of motion seeking proceedings to be dismissed for want of prosecution and indemnity costs order - no appearance by applicants - first applicant in liquidation - proceedings dismissed for want of prosecution - costs on a party/party basis as agreed or assessed HEARING DATES: 04/17/2002 EXTEMPORE JUDGMENT DATE : 04/17/2002 FIRST, SECOND, FOURTH, FIFTH AND SIXTH RESPONDENTS: Mr Frazer SOLICITORS: Kemp Strang LEGAL REPRESENTATIVES: THIRD RESPONDENT: Ms Every SOLICITORS: Corrs Chambers Westgarth JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 17 April 2002 MATTER NUMBER IRC 2735 OF 2001 WEXL HYDRAULIC SERVICES CONTRACTING PTY LIMITED AND ANOTHER v SAMBAH HOLDINGS PTY LIMITED AS TRUSTEE FOR THE SAMBAH UNIT TRUST AND OTHERS Application under section 106 of the Industrial Relations Act 1996 DECISION (Extempore ) 1 In this matter a Notice of Motion was filed on 22 January 2002 by the first, second, fourth, fifth and six respondents, seeking an order that the proceedings be dismissed for want of prosecution pursuant to the Rules. That application was supported by the third respondent. The application was brought forward together with an affidavit sworn in support by Sarina Roppolo of 11 January 2002, which details the history of the matter. 2 The Notice of Motion came into the list on 19 February 2002, when Mr Hodges appeared for the applicants and outlined the difficulties which he then faced in obtaining instructions as to whether the application was to be pressed, particularly having regard to the appointment of a liquidator to the first applicant. 3 The matter was adjourned until 27 March to enable Mr Hodges to obtain further instructions. On that day there was no appearance for the applicants and the Notice of Motion was listed for hearing today. 4 In the meantime, a communication has been received from Mr Porter, the liquidator of the first applicant, advising that there are no funds in the winding-up and that he does not intend to continue on with the proceedings. There is also evidence that Mr Hodges, the solicitor on the record for the first applicant, was given notice of today's hearing. 5 In the circumstances, which I have outlined, I take the view that it is appropriate to make the orders sought. For these reasons I dismiss the proceedings for want of prosecution. 6 The respondents also pressed for an order of indemnity costs in their favour. 7 There is much authority on the circumstances in which an indemnity costs order might be awarded and the cautious approach which, of necessity, must be adopted when the making of such an order arises for consideration. I am not satisfied in circumstances such as this that it is appropriate to make an indemnity costs order. I am satisfied however that it is appropriate to make a costs order in favour of the respondents when, as here, proceedings are dismissed for want of prosecution. 8 I order that the applicant bear the respondents' costs on a party/party basis, as agreed or assessed. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.