Lancord Pty Ltd v Sibvale Pty Ltd [2006] NSWSC 1117

New South Wales Supreme Court

CITATION : Lancord Pty Ltd v Sibvale Pty Ltd [2006] NSWSC 1117

HEARING DATE(S) : 13/10/06 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 10/13/2006

DECISION : Motion to dismiss action for failure to prosecute with due dispatch dismissed. Costs are costs in the cause.

CATCHWORDS : PROCEDURE [93]- Dismissal of proceedings- Whether failure to prosecute proceedings with due dispatch- Plaintiff failed to comply with directions- Late affidavits- Defendant filed motion to dismiss proceedings, but did not adequately prewarn plaintiff- Plaintiff's delay not inordinate, inexcusable or contumelious- Motion dismissed.

LEGISLATION CITED : Conveyancing Act 1919, s 55(2A) Uniform Civil Procedure Rules 2005, Pt 12 r 12.7

PARTIES : Lancord Pty Limited (P) Sibvale Pty Limited (D)

FILE NUMBER(S) : SC 2426/06

COUNSEL : G Elliot (Plaintiff/Respondent) L Goodchild (Defendant/Applicant)

SOLICITORS : Campbell Paton & Taylor (Plaintiff/Respondent) Sheridan Legal Pty Ltd (Defendant/Applicant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Friday 13 October 2006

2426/06 – LANCORD PTY LTD v SIBVALE PTY LTD JUDGMENT 1 HIS HONOUR: This is a motion filed by the defendant to have the plaintiff's claim dismissed because it has not been prosecuted with due dispatch. The proceedings are a purchaser's suit for a declaration that its contract to purchase land from the vendor had been rescinded and it was entitled to get back $77,000 deposit. 2 The plaintiff's claim is that the contract was rescinded. The defendant says that it was terminated for breach. The defendant seems to be saying that it was entitled and did forfeit the deposit. The plaintiff put on a caveat. The defendant sought to have the caveat removed. Barrett J extended it. However, subsequently the parties came to an agreement. The caveat was lifted and the deposit was paid into the defendant's solicitor's trust account to await the decision of this case. 3 It is a shame that a matter involving only $77,000 is before the Supreme Court when there would really not appear to be any particular reason for that as it does not appear any relief is claimed under s 55(2A) of the Conveyancing Act 1919. This is usually the only reason why these small claims should be before this Court. 4 It is a little hard to see what the defendant really wants out of this case. One would have expected there would be some sort of cross-claim. One would have expected there would have been some election as to which of the alternative claims the vendor was entitled to pursue under the failed contract. It appears to have pursued none of them. 5 Timetables were set for filing affidavits. The plaintiff has not complied. The defendant's solicitor, I am told from the Bar table, telephoned the plaintiff's solicitor as to why and was given the same sort of explanation as now appears in the affidavit of Mr O'Neil; that was that there were personal problems with Mr O'Neil and difficulties in making proper contact with another witness, Mr Roberts. 6 Notwithstanding that, without any warning letter, a motion was filed on 10 October returnable today before the duty judge seeking urgent relief that the matter be struck out. The affidavit evidence in favour of the motion was mostly in inadmissible form, being a solicitor's summary of correspondence without the Court being provided with the correspondence itself, and most of the material in the affidavits was completely irrelevant to the point I have to decide. 7 There is little doubt that the plaintiff is in breach of the timetable. Its affidavits were supposed to be filed by 28 September and it is now 13 October. The Court does expect people to comply with directions, or if directions are not going to be complied with because of some acceptable circumstance, to ask the Court to vary the timetable. However, considering as little as $77,000 is involved, and the Court knows each time people appear on a mention someone will have to pay $500 or so, the Court does not encourage multiple applications being made to the Court. 8 If a person wishes to avail themselves of Part 12 r 12.7 of the Uniform Civil Procedure Rules 2005, the standard practice is that before a notice of motion is filed a letter should be sent by the person complaining of the delay to the other party clearly indicating that in fourteen days' time, if the default is not remedied, it will move the Court for relief. That did not happen in the instant case. 9 The defendant's solicitor telephoned the plaintiff's solicitor but it would seem when he did so he got a reasonable reply rather than a reply which indicated that there was inordinate, inexcusable or contumelious delay which is usually the sort of delay looked for in applications under Part 12 r 12.7 of the Rules, though the Court is not confined to such circumstance. 10 Furthermore, there was no reason to bring this motion on in great haste or before a judge. These matters are usually dealt with by a Registrar or Associate Justice. The power to dismiss an action for failure to prosecute it with due dispatch is power to be used sparingly. People are entitled to have their day in court and it is only in exceptional cases where there is a clear intention by a party to defeat or delay the other party, that such an order should be made. I do not consider that the evidence before me has reached that stage. 11 Accordingly, the motion of 10 October 2006 is dismissed. I extend the time for filing the plaintiff's affidavits until 13 November 2006. The defendant's affidavits in reply are to be filed and served no later than 11 December 2006 and the matter can be mentioned before the Registrar at 9.30 am on 12 December 2006. I vacate the mention before the Registrar on 13 November 2006. 12 Both sides have applied for costs. The matter came before the Court because the plaintiff was in default. However, the defendant did not adopt the appropriate procedure and failed in the motion. I think the proper order is costs of today be costs in the cause.