Pritchard Associates v Stevenson & Anor [2001] NSWSC 463

New South Wales Supreme Court

CITATION : Pritchard Associates v Stevenson & Anor [2001] NSWSC 463 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11597 of 1997 HEARING DATE(S) : 4 June 2001 JUDGMENT DATE : 6 June 2001

Pritchard Associates Pty Limited (Plaintiff) PARTIES : v David Stevenson (First Defendant) Harvey Wong (Second Defendant) JUDGMENT OF : Master Malpass

Mr I Wales SC (Plaintiff) COUNSEL : Mr J Downing (First Defendant) N/A (Second Defendant) Truman Hoyle (Plaintiff) SOLICITORS : Holman Webb (First Defendant) N/A (Second Defendant)

CATCHWORDS : Dismissal of proceedings - what appears from records maintained by the court - special circumstances - setting aside dismissal order - discretionary considerations - application for payment out. LEGISLATION CITED : Supreme Court Rules 1970 Pt 32A, Pt 32A r 2. CASES CITED : N/A DECISION : See Paragraphs 24 - 25.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 6 JUNE 2001

11597 of 1997 PRITCHARD ASSOCIATES PTY LIMITED v DAVID STEVENSON & ANOR JUDGMENT 1 These proceedings were commenced in May 1997. A claim for fees is brought (in the order of half a million dollars). It relates to the provision of consultancy services for a project in Papua New Guinea. Whilst there are two defendants, the court is presently concerned with the first defendant only. At all material times, he has resided overseas. 2 During 1997 and 1998, the court gave directions on a number of occasions. The defendants did not comply with the directions. 3 On 5 May 1998, default judgment was entered against both defendants. Subsequently, the judgment was registered in British Colombia. 4 On 12 November 1998, the first defendant made application to set aside the default judgment. The application came on for hearing on 10 December 1998. The judgment was set aside on terms (inter alia the first defendant was required to pay the sum of $100,000 into court on or before 4.00pm on 15 January 1999). 5 Time for compliance with the payment into court was extended on two occasions. 6 There has been relatively little activity in the matter. The first defendant made an unsuccessful application for separate determination of questions. The plaintiff has provided a list of documents. The first defendant has neither filed nor served any experts' reports. In the earlier part of 2000, some communication passed between the solicitors for the parties. By the latter part of 2000, the solicitors for the plaintiff took the view that the matter was ready for hearing. Some abortive activity was taken to have the matter listed for hearing. 7 By letter dated 12 January 2001, the court gave notice to the parties of intention to dismiss the proceedings pursuant to Pt 32A of the Supreme Court Rules 1970. The solicitor for the plaintiff responded to the notice by attending the Court Registry. He sought to see a Duty Registrar (inter alia he wanted to find out how he could have the matter fixed for hearing). Unfortunately, no Duty Registrar was available at that time. In an affidavit, he said that "Thereafter, the matter slipped my mind". 8 On 22 February 2001, Assistant Registrar Howe dismissed the proceedings pursuant to Pt 32A r 2. The order has been recorded by endorsement on the file copy of the letter dated 12 January 2001. It seems that the parties were not notified of the making of this order. 9 The first defendant became aware of the order. By Notice of Motion filed on 10 April 2001, the first defendant applied to the court to have the balance of the sum of $100,000 paid out of court. This led to the plaintiff bringing a Notice of Motion seeking to have the dismissal order set aside. Both applications were heard on 4 June 2001. 10 It is common ground that the court has power to set aside the order. The dispute between the parties concerns whether or not the discretionary power should be exercised in favour of the plaintiff. 11 Part 32A is headed "DISMISSAL OF INACTIVE PROCEEDINGS IN A DIVISION". It is in the following terms:- " [32A.1] r 1 Application 1 This Part applies to proceedings in a Division that have not been disposed of by judgment, final order, discontinuance or dismissal.