Andresakis and Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294

New South Wales Court of Appeal

CITATION: Andresakis and Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294

HEARING DATE(S): 29 September 2006

JUDGMENT DATE: 2 November 2006

JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; McColl JA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: PROCEDURE - District Court Rules Pt 1 r 7A - order made setting aside preliminary dismissal order - preliminary dismissal order made because of breaches of District Court Practice Note 33 and procedural directions - application to set aside approximately 3 years after preliminary dismissal order made - primary judge accepted substantial part of that period explained by fact plaintiff's former solicitors failed to inform it of preliminary dismissal order - 2 month unexplained delay in application to set aside preliminary dismissal order after plaintiff became aware of it - no actual prejudice to defendants if order set aside - held - question whether preliminary dismissal order should be set aside turns on demands of justice between the parties - court has regard to whether a satisfactory explanation and excuse for the delay in making the application has been provided, with explanation for the original failure, and whether it has been cured, both being germane - factors such as the availability of a claim against former solicitors, expiration of the limitation period and blameworthiness of plaintiff and/or legal representatives relevant but not determinative (D)

Fair Trading Act 1987 Limitation Act 1969 Motor Accidents Act 1988 LEGISLATION CITED: Trade Practices Act 1974 (Cth) District Court Rules 1973 District Court Amendment (Dismissal and Strike Out) Rule 2000 Supreme Court Rules 1970