Tela Pty Ltd v State Bank [2001] NSWSC 327

New South Wales Supreme Court

CITATION : Tela Pty Ltd v State Bank [2001] NSWSC 327 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2573 of 1997 HEARING DATE(S) : 19 April 2001 JUDGMENT DATE : 19 April 2001

Tela Pty Limited (Plaintiff/Appellant) PARTIES : State Bank of New South Wales (First Defendant/First Respondent) Nicholas George Cassim (Second Defendant/Second Respondent) JUDGMENT OF : Windeyer J at 1

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master Macready JUDICIAL OFFICER :

COUNSEL : Mr S Jacobs (Plaintiff/Appellant) Mr R Hollo (Defendants/Respondents) Messrs McKells (Plaintiff/Appellant) SOLICITORS : Minter Ellison (First Defendant/First Respondent) Henry Davis York (Second Defendant/Second Respondent) CATCHWORDS : APPEAL FROM MASTER - PROCEDURE - Supreme Court Rules Pt32A r2 - proceedings dismissed by Master as no special circumstances - whether discretion not to dismiss in absence of special circumstances LEGISLATION CITED : Limitation Act 1969 Supreme Court Rules Part 32A rule 2 DECISION : See paragraph 22

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

THURSDAY 19 APRIL 2001

2573/97 TELA PTY LTD v STATE BANK OF NSW LTD & ANOR.

JUDGMENT

1 HIS HONOUR: These are proceedings by way of an application for leave to appeal out of time from a decision of Master Macready of 13 April 2000 and, if leave is given, then an appeal from that decision. 2 It is not contested that there is a sound reason for giving leave to extend the time for appeal. A notice of appeal in an inappropriate form as it was to the Court of Appeal was in fact lodged within time and the only argument put forward by counsel for the respondents is that there is no purpose in giving an extension of time because the appeal is bound to fail. 3 By order of 13 April 2000, the learned Master dismissed these proceedings pursuant to Part 32A rule 2 of the Supreme Court Rules. That order was made after the Court had given notice to the plaintiff, as it does under that rule, that the Court was considering dismissing the proceedings because the plaintiff had not for over a year taken any step in the proceedings. 4 It appears from the decision of the Master that what happened then was that the plaintiff took out a motion for directions and the question of whether or not the proceedings should be dismissed under the relevant rule was heard pursuant to that motion. 5 I should say that I have ascertained that what normally happens is that the party to whom the notice is sent responds to the Court, usually by way of letter, and the matter is usually dealt with by the Registrar one way or the other by referral to a Master or ensuring that they are satisfactorily brought to a conclusion. That, however, is not relevant to what is being dealt with here, there being no doubt that the Master was authorised to make the order which he did make. 6 The proceedings by the plaintiff company are against the State Bank of New South Wales and a former solicitor acting for the plaintiff company. It is not necessary to go into any detail of the actual claims made by the plaintiff company other than to say it has a claim against the bank for misleading and deceptive conduct in relation to a mortgage entered into between the plaintiff and that bank and makes a claim that the bank as mortgagee sold the mortgaged property at an undervalue. The claim against the solicitor is that he improperly consented to an order for possession being made in possession proceedings brought by the bank against the plaintiff company and presumably for damages consequential upon that order having been made. 7 The learned Master pointed out some of the difficulties with those claims. All that need be said is that some of them appeared to him to be clearly barred by the Limitation Act 1969 but the claim against the solicitor, if it has substance, and the claim for sale at undervalue would not be so barred. 8 The learned Master referred in some detail to the course of the proceedings and particularly to the attitude of the plaintiff company which clearly was that it would only bring the proceedings if it could find lawyers prepared to act for it on a contingency basis. It is clear that it is for that reason that there have been numerous solicitors on the record for the plaintiff company from time to time, they, from time to time, deciding that they are no longer prepared to act in the proceedings, usually stating that they had too much work. In fact, the present appeal is being conducted by counsel and solicitor acting on some contingency basis, there being no certainty at all that they would continue to act for the plaintiff company if this appeal succeeds. 9 The learned Master considered Part 32A rule 2 which provides that: If a party has taken no steps in a proceedings for over one year, then the court may of its own motion dismiss the proceedings unless the party satisfies the Court that special circumstances exist that render it desirable that such order should not be made.