Starcevich v Swart & Associates Pty Ltd [2007] NSWSC 86

New South Wales Supreme Court

CITATION : Starcevich v Swart & Associates Pty Ltd [2007] NSWSC 86

HEARING DATE(S) : 8 February 2007

JUDGMENT DATE : 8 February 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : The requirements of UCPR rr 7.2(1) and 7.2(2) are cumulative. Rule 7.2 must be strictly complied with.

CATCHWORDS : CORPORATIONS [1083] – Legal capacity and relations with outsiders – External litigation procedure – Appearance in court by company and representation – Who may appear – Representation by director – In Supreme Court of New South Wales UCPR r 7.2 must be strictly complied with.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 rr 7.2, 9.1, 14.3

CASES CITED : Starcevich v Swart and Associates Pty Ltd [2006] NSWSC 960 Starcevich v Swart and Associates Pty Ltd [2006] NSWSC 1387

Teresa Starcevich (P1) PARTIES : Andrew Charles Roth (P2) Swart & Associates Pty Ltd (D)

FILE NUMBER(S) : SC 3961/06

COUNSEL : In person (Ps1&2) J Swart, Director, by leave (D)

SOLICITORS : Self represented (Ps1&2) Director, by leave (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 8 FEBRUARY 2007

3961/06 TERESA STARCEVICH & ANOR v SWART AND ASSOCIATES PTY LTD JUDGMENT 1 HIS HONOUR: These proceedings are before me today for trial. The matters for trial are the plaintiffs' claim as made in statement of claim filed on 15 November 2006. Mrs Swart, a director who has appeared for the defendant today (about which I shall have more to say later in these reasons for judgment), has informed me that the defendant seeks to proceed today upon a statement of cross claim which it filed on 23 January 2007. 2 The plaintiffs were until this morning represented by Pryor Tzannes & Wallis, Solicitors. This morning Miss Karine Marianne from that firm announced her appearance for the plaintiffs. However, immediately thereafter, she sought leave to file a notice of ceasing to act for the plaintiffs. The reason leave was required was that that firm ceased to act on 30 January 2007 and there had not been time to serve the notice of ceasing to act required by the Rules. As it was clear and was not disputed by the plaintiffs that they knew that the solicitors intended to cease acting, I granted leave for that notice of ceasing to act to be filed in court this morning and Miss Marianne then departed. 3 The two plaintiffs then announced their appearance in person and applied for an adjournment of the proceedings from today. The only matter that they were aware was listed to proceed today was their claim. They tell me, and I have no material to the contrary, that they became aware of the existence and service of the statement of cross claim only during the proceedings in court this morning. 4 This is not the first time during the course of these proceedings that the plaintiffs have appeared in person or that solicitors have ceased to act for them. Mr Richard Shakenovsky of Greenstein Shakenovsky, Solicitors, filed a notice of ceasing to act for the plaintiffs on 18 August 2006. 5 In announcing opposition to the application for adjournment, Mrs Swart asserted that the termination of the solicitors' services was part of a course contrived by the plaintiffs to avoid finalisation of the matter in the Court. She desired to lead evidence to this effect. However, no evidence was led. 6 I drew attention to certain problems that faced the defendant in proceeding with the matter today. The first is that Mrs Swart both appeared on the application and intended to appear on the hearing, if it proceeded, as a director of the company. However, an examination of the material on which she relied to justify that course showed that that material was defective. The relevant rule is r 7.2 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). The relevant parts of that rule are as follows: " 7.2 Affidavit as to authority to commence and carry on proceedings in Supreme Court or District Court