Land and Environment Court of New South Wales CITATION : Ray Hannah's Motors Pty Ltd v Wollongong City Council [2007] NSWLEC 70 APPLICANT: Ray Hannah's Motors Pty Ltd PARTIES : RESPONDENT: Wollongong City Council FILE NUMBER(S) : 41420 of 2005 CORAM: Biscoe J KEY ISSUES: Practice and Procedure :- Summary dismissal of proceedings for failure to prosecute LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 12 r 2 DATES OF HEARING: 05/02/2007 EX TEMPORE JUDGMENT DATE : 5 February 2007 APPLICANT: Ms K C Gourlie, solicitor SOLICITORS Watson & Watson LEGAL REPRESENTATIVES: RESPONDENT: Mr R J Lewin, solicitor SOLICITORS Kells JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 5 February 2007 41420 of 2005 RAY HANNAH'S MOTORS PTY LIMITED v WOLLONGONG CITY COUNCIL EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a notice of motion by the respondent council seeking an order, pursuant to Part 12 rule 2 of the Land and Environment Rules 1996, that the proceedings be dismissed because of the applicant's failure to prosecute the proceedings, or alternatively, that the dates fixed for hearing on 12, 13 and 14 February 2007 be vacated and a fresh pre-hearing timetable be fixed. The applicant does not contest the vacation of the hearing dates and has indicated that it would agree to an order that it pay the costs thrown away if the hearing date were to be vacated. However it submits that the proceedings should not be summarily dismissed. 2 Part 12 rule 2 of the Land and Environment Court Rules 1996 provides: 2 Failure to prosecute proceedings (1) If an applicant does not within a reasonable time take any step necessary to bring any proceedings to a hearing, or unreasonably takes any step to avoid the proceedings being brought to a hearing, the Court may, on the application of the respondent, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit. (2) The Court may at any time prior to the hearing, if satisfied that there is no good reason for the failure of the applicant to prosecute the proceedings, dismiss those proceedings. (3) If proceedings are dismissed under this rule, Part 11 rules 5, 6 and 7 apply as though the dismissal were a discontinuance. 3 The substantive application was filed on 1 December 2005 and was first returnable before the Court on 25 January 2006. It seeks the following relief: (1) A declaration that condition 18 of the conditions forming part of the Notice of Determination of Development Application D90/412 dated 7 August 1990 issued by the respondent council to the applicant is invalid. (2) Alternatively, a declaration that Lot 23 DP 835200 (or alternatively 1.28 hectares being part of that lot) known as "McCauley Park" was transferred by the applicant to the respondent in circumstances such that the respondent was unjustly enriched by such transfer. (3) Alternatively, a declaration that the transfer of the land to the respondent occurred in circumstances such that the conduct of the respondent was unconscionable. (4) An order the respondent transfer to the applicant 1.28 hectares being part of the said land or such other area being part of the said land as the Court deems fit. (5) Further and any alternative, an order that the respondent pay the applicant damages, and if so ordered, that there be an inquiry to determine the amount of such damages. (6) The respondent pay the applicant's costs. 4 The matter has now been before the Court on eight occasions. On the second occasion the applicant indicated to the Court that the unjust enrichment claim was based on the ancillary jurisdiction of the Court. It was also said that the applicant had Supreme Court proceedings under way. Directions were made by this Court for the progress of the matter on 15 February, 5 May, 30 June and 1 September 2006. On at least the first three of those four occasions the directions were made by consent. None of the directions have been complied with by the applicant, not even the initial direction made in February 2006 that it file and serve points of claim. 5 On 24 August 2006 the respondent council's solicitor telephoned the applicant's solicitor and had a conversation in which the former said that the matter was listed for directions the next day and that the applicant had not complied with the last two timetables fixed by the court. He inquired as to what the applicant's intentions were so that he could obtain instructions from the respondent. The applicant's solicitor said that the reason for the delay was that his client's junior counsel was overseas and would not return until 4 September 2006. Senior counsel had been briefed but would not return the applicant's solicitor's calls. The applicant's solicitor apologised about the lack of progress and asked whether the respondent would agree to stand the matter over until junior counsel returned from overseas. The respondent's solicitor said that he would obtain instructions. 6 Before me the applicant's solicitor acknowledged that there has been great delay by the applicant in progressing the matter. He explained that there had been difficulty in obtaining the advice of senior counsel, but that he had received advice from junior counsel that the proceedings in this Court and in the Supreme Court should both be maintained. 7 In my view, the delay and default by the applicant is grave. It is unacceptable that in the period of over a year since these proceedings were commenced the applicant has not even taken the first step, as directed by the Court, of filing points of claim. Nor has it served any affidavits although it was directed to do so by 20 November last year. The hearing is listed to commence in a little over a week. The respondent council has briefed senior and junior counsel to advise and appear at the hearing and is continuing to incur costs. 8 As things stand, if the matter is allowed to go to trial in a week's time there will be no pleadings and no evidence by the applicant, and the respondent will incur even further costs. 9 The solicitor for the applicant has said everything that could be said on his client's behalf. However, in my opinion the applicant's defaults and delay are so serious that there would be substantial injustice to the respondent in allowing this to go on any longer. No adequate reason has been shown for the failure of the applicant to prosecute the proceedings. In these circumstances I am satisfied that the proceedings should be summarily dismissed. 10 Accordingly I make the following orders: 1. The proceedings are dismissed. 2. The applicant is to pay the respondent's costs of the proceedings. 3. The dates fixed for hearing of 12, 13 and 14 February 2007 are vacated. 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