Central West Equipment v Gardem Investments & ors [2002] NSWSC 607

New South Wales Supreme Court

CITATION : Central West Equipment v Gardem Investments & ors [2002] NSWSC 607 FILE NUMBER(S) : SC 20372/98 HEARING DATE(S) : 28/5/02 JUDGMENT DATE : 28 May 2002

PARTIES : Central West Equipment Gardem Investments & ors JUDGMENT OF : O'Keefe J at 1

COUNSEL : Plaintiff - Ms S Lovett Defendant - Mr G Gardem (in person) SOLICITORS : Plaintiff - Wilson, Fardell & Moore - Solicitors Defendant - Gibson Owen Lawyer Inc - Solicitors CATCHWORDS : Change of venue - Venue previously changed by consent - Delay not satisfactorily explained - Stay - Unpaid costs of another action - Trifling amount - Consent injunction - Liberty to apply - No change of circumstances - Damages sought for a person who is not a party to action. DECISION : 1. Notice of Motion dismissed; 2. The third defendant is to pay the costs of the Motion; 3. Assessment of costs of the Motion to be deferred until the conclusion of the principal proceedings.

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

O'KEEFE J

TUESDAY, 28 MAY 2002

20372/98 – CENTRAL WEST EQUIPMENT v GARDEM INVESTMENTS & ORS

JUDGMENT 1 HIS HONOUR: By Notice of Motion filed 26 March 2002 Graham Gardem (the third defendant) seeks essentially three orders:

1. A change of venue for the hearing of the matter from Sydney to Lismore.

2. A stay of the proceedings based on several grounds.

3. An order dissolving an injunction made by consent on 24 December, 1996 as a result of which an amount of $5,321 is held in the court presumably to abide the outcome of the proceedings in which the Motion has been filed. 2 The principal proceedings were commenced by Central West Equipment Hire Pty. Ltd. (the plaintiff) by Statement of Claim filed on 29 May, 1996. The cause of action relied on is breach of a contract alleged to have been entered into on 8 May 1995 and involving the sale of a plant hire business located at 13-15 Peisley Street Orange. The sale is said to have included certain plant, fittings and chattels. 3 The plaintiff's allegation is that the defendants in the action failed to deliver the plant and equipment the subject of the agreement and despite requests for the return of such equipment they have continued in their failure to do so. The value of the items involved is nominated in the Statement of Claim as $40,611.30. 4 A further claim is made against the defendants, namely, that they, or some of them, misrepresented the takings of the business and breached a promise which was said to be included in the agreement to the effect that the business would achieve sales of at least $300,000 per annum. As a consequence of such breach the plaintiff claims to have sustained substantial damage. 5 The action has a long history. It is a history in which the defendants have, from time to time, employed different solicitors and have either terminated their services or the solicitors themselves have terminated their services. The action has been differentially case-managed. 6 The case has apparently been ready for hearing since 17 May 2001. It is listed for hearing in Sydney on 8 July 2002. As already indicated, the contract the subject of the litigation was made and is alleged to have been breached in Orange, New South Wales. However, on 28 August 1998, at the request of the defendants and with the consent of the plaintiff, the action was transferred to Sydney from the venue named in the Statement of Claim, namely Orange. At the time of the consent there was no suggestion that the venue of Sydney was inappropriate or that any venue other than Orange or Sydney would be appropriate. 7 On 9 March 2001 the parties attended a compliance conference and on that date orders were made that: "(i) The plaintiff file and serve affidavit evidence in the action on or before 23 March 2001 (ii) That the plaintiff file and serve an Accountant's report, being that of an investigating Accountant on or before 4 April 2001; (ii) The defendants file and serve all affidavit evidence intended to be relied upon in the action on or before 14 June 2001."