Prowse v Tripple Take Pty Ltd & anor [2002] NSWSC 176

New South Wales Supreme Court

CITATION : Prowse v Tripple Take Pty Ltd & anor [2002] NSWSC 176 FILE NUMBER(S) : SC 2136/99 HEARING DATE(S) : Friday, 8 February 2002 JUDGMENT DATE : 8 February 2002

PARTIES : Graeme John Prowse (Plaintiff) Tripple Take Pty Ltd (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : R.I. Bellamy (Defendant) SOLICITORS : Lazarus Smith Lawyers (Plaintiff) Slater & Gordon (Defendant) DECISION : 1. Order, pursuant to Part 32A of the Supreme Court Rules, that the proceedings be dismissed.; 2. Order that the Plaintiff pay the costs of the Defendants of the proceedings and of today's hearing.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 8 February 2002

2136/99 GRAEME JOHN PROWSE -V- TRIPPLE TAKE PTY LIMITED & ANOR JUDGMENT 1 MASTER: By letter dated 16 November 2001 the Court, of its own motion, has invoked the provisions of Part 32A of the Supreme Court Rules. 2 The reason for the Court thus invoking those provisions of the Rules is that it appears from the records maintained by the Court that no party to the proceedings has for over one year taken any steps in the proceedings. 3 The plaintiff, Graeme John Prowse, opposes the dismissal of the proceedings pursuant to Part 32A of the Rules. The defendants, Tripple Take Pty Limited and Robert Lloyd Brooks, support the dismissal of the proceedings. 4 The substantive proceedings were instituted by summons filed by the plaintiff on 28 April 1999. By that summons the plaintiff seeks relief in what might compendiously be described as an oppression suit. 5 The first defendant is a shareholder and the second defendant is one of the directors and shareholders of the first defendant. The only other director and shareholder of the first defendant is the wife of the second defendant. 6 The summons did not appoint a return date. The plaintiff has not, since the filing of the summons, chosen to bring the matter before the Court for directions or for any other purpose. The procedural history of the matter is outlined in the affidavit of Phillip John Pasfield sworn 5 February 2002, filed on behalf of the defendants. 7 The plaintiff, in opposing the dismissal of the proceedings, has relied on an affidavit sworn by himself, Graeme John Prowse, yesterday, 7 February 2002. That affidavit was relied upon by the plaintiff at today's hearing in the face of opposition by the defendants. 8 The plaintiff, in seeking to resist the dismissal of the proceedings, refers in that affidavit to the preparation of an expert report in the matter. It would appear that such a report has now been prepared, but only within the last two days. The plaintiff does not appear to have attended to the preparation of such an expert report until relatively recent times. 9 The plaintiff, in his affidavit, refers to various matters of a financial and business nature and to other litigation being pursued by him. None of those matters, however, offers the faintest explanation as to why the plaintiff has, in effect, done nothing whatsoever in this case since informal discovery between the parties was completed and inspection of documents was held by 1 August 2000. For a period of more than a year and a half the plaintiff has, for all practical purposes, done nothing. 10 Not only do I not consider that the plaintiff has established any circumstance that renders it desirable that such an order should not be made, but I note that there is no possible basis for submitting that special circumstances exist that render it desirable that such an order for dismissal should not be made. 11 I propose to order that the proceedings be dismissed pursuant to Part 32A of the Supreme Court Rules. 12 I make the following orders: