Baikie v Huxley [2001] NSWSC 962

New South Wales Supreme Court

CITATION : Baikie v Huxley [2001] NSWSC 962 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50126/01 HEARING DATE(S) : 19.10.01 JUDGMENT DATE : 30 October 2001

PARTIES : Winifred Anne Worfolk Baikie -v- Gregory John Huxley & Anor JUDGMENT OF : Hunter J

Applicant/First Defendant: M Foley (solicitor) COUNSEL : Respondent/Plaintiff: M Vincent Second Defendant: B Gillard (solicitor) Applicant/First Defendant: Foleys Solicitors SOLICITORS : Respondent/Plaintiff: Greg Judd & Associates Second Defendant: Conway MacCallum CATCHWORDS : Practice & procedure - application to stay pursuant to Pt 14B r 8 - prior proceedings dismissed under Pt 14B r 7 as inactive file with no order as to costs - application to transfer matter to common law list - discretionary factors - defendants' costs of prior proceedings to follow event in current proceedings - stay refused - costs of application costs in the cause. DECISION : In proceedings no 11743/00 defendants' costs of proceedings to follow the event of proceedings no 50126/01. Otherwise application dismissed. Costs of application be costs in the cause.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMERCIAL LIST EQUITY DIVISION

HUNTER J

TUESDAY 30 OCTOBER 2001 50126/01 WINIFRED ANNE WORFOLK BAIKIE –V- GREGORY JOHN HUXLEY & ANOR REASONS FOR JUDGMENT 1 This is an application by the first defendant on amended notice of motion seeking the following relief: "1. A Declaration that pursuant to the provisions of Part 14B Rule 8 of the Supreme Court Rules the Plaintiff is liable to pay the Defendants' costs of and incidental to the previous proceedings between the same parties No. 11743 of 2000, which was dismissed by the Court on 13th July 2000 for want of prosecution. 2. These proceedings be stayed until the Defendants' costs in these proceedings to date and the previous proceedings No. 11743 of 2000 have been agreed to or assessed and paid. 3. These proceedings be transferred out of the Commercial List and placed in the Common Law Division's General List." 2 It is not in dispute that the plaintiff brought proceedings against the defendants by statement of claim in proceedings number 11743 of 2000 in the Common Law Division of this Court (the common law proceedings), seeking the same relief as that claimed in these proceedings. 3 The common law proceedings were dismissed pursuant to the provisions of Pt 14B r 7 of the Supreme Court Rules on 13 July 2001, which is in the following terms: " 7 (1) If a defence to a possession claim has not been filed in proceedings entered in the List within 5 months of the possession claim being instituted, the Court may of its own motion dismiss: (a) the proceedings; or