Adamson v Liu [2008] NSWSC 1055

New South Wales Supreme Court

CITATION : Adamson v Liu [2008] NSWSC 1055

HEARING DATE(S) : 1 September 2008 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 1 September 2008

DECISION : Orders made on 18 July 2006 set aside.

CATCHWORDS : PROCEDURE – application to set aside orders of Associate Judge dismissing proceedings – where proceedings have lengthy procedural history – where plaintiff did not appear on day orders made – where plaintiff had appeared on most other occasions – whether plaintiff sufficiently explained absence – whether plaintiff failed to appear due to honest oversight – whether there was a triable basis for opposing the relief that was granted.

LEGISLATION CITED : Uniform Civil Procedure Rules, rr 13.4, 13.8, 36.16

CATEGORY : Procedural and other rulings

Christopher Michael Adamson (plaintiff) PARTIES : Adelene Marie Liu (first defendant) Kenneth J Reid (second defendant)

FILE NUMBER(S) : SC 5312/04

COUNSEL : Mr C M Adamson (in person) (plaintiff) Mr R J Horsley (defendants)

SOLICITORS : Chris Adamson Solicitors (plaintiff) Horowitz & Bilinsky (defendants)

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

BRERETON J

Monday, 1 September 2008

5312/04 Christopher Michael Adamson v Adelene Marie Liu JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff commenced these proceedings on 30 September 2004, by a statement of claim filed that day which has subsequently been amended more than once, a second further amended statement of claim having been filed on 8 May 2007. Leave to file a third further amended statement of claim appears to have been granted on 7 December 2007 and that leave expired on 7 January 2008. It seems that the plaintiff purported to file a third further amended statement of claim one day out of that period, on 8 January 2008. 2 On 4 March 2008, the defendant filed a motion seeking an order that the third further amended statement of claim – said to have been filed irregularly on 8 January 2007 (sic) – be removed from the file and its filing set aside; and further, or alternatively, that the third further amended statement of claim be struck out pursuant to Uniform Civil Procedure Rules ("UCPR"), r 14.28, and that the proceedings be dismissed pursuant to UCPR, r 13.4. This motion came before the Court on 28 March 2008, when it was fixed for hearing on 18 July 2008, a date apparently nominated by the plaintiff as being suitable to him. 3 On 18 July 2008, the matter was called three times in the Registrar's Court and there was no appearance for the plaintiff. It was then referred to an Associate Judge, where again there was no appearance when it was called on for hearing. The Associate Judge made an order that the third further amended statement of claim be removed from the file and its filing be set aside, and that the proceedings be dismissed pursuant to UCPR, r 13.4. His Honour also ordered that the plaintiff pay the defendant's costs of the motion and of the proceedings. 4 That outcome was brought to the plaintiff's notice by letter from the defendant's solicitor of 21 July 2008, which the plaintiff received on 30 July. The plaintiff responded immediately, indicating that his failure to appear was due to an honest oversight and mentioning that at a previous directions hearing, when there had been no appearance for the defendant, he had appeared alone and merely had the matter adjourned and advised the defendant of the adjourned date. He proposed that the orders of 18 July be set aside, that the defendant's motion be fixed for further hearing, and that he pay the defendant's costs thrown away by his non-attendance on 18 July. By letter of 7 August 2008, the defendant's solicitors declined to agree to that proposal. 5 By Notice of Motion filed on 31 July 2008, the plaintiff seeks inter alia that the judgment given on 18 July be set aside, and that he pay the defendant's costs thrown away by his non-attendance on that date. 6 On an application such as the present it is normally necessary to show that there is an explanation for the absence of the absent party on the occasion in question, and a triable basis for opposing the relief that was granted. 7 So far as absence is concerned, Mr Adamson says he was absent due to an honest mistake. He has not elaborated on that, but on the other hand he has not been cross-examined about it. The court file shows that he has, on virtually every other occasion, been present in person. The matter has been before the Court many times. The plaintiff, who acts for himself, has appeared on virtually every occasion, and on some occasions, as the file discloses, has mentioned the matter for the defendant. I am prepared to accept that his absence was, as he contends, due to an honest oversight. 8 As to a triable basis for resisting the relief sought, the position of neither party has descended to much detail. The third further amended statement of claim was apparently filed out of time, by one day. But it is difficult to imagine that the Court would not, had leave been sought, have extended the time for its filing by a day, bearing in mind also that irregularity does not invalidate proceedings in the absence of an order that it do so. 9 So far as summary dismissal pursuant to UCPR, r 13.4 is concerned, I have had but the slightest opportunity to peruse the statement of claim. But it is telling that the proceedings have been on foot for some four years without to this point having been summarily dismissed. 10 In the overall scope of what is in issue, the time involved, and the way in which the proceedings have been conducted to date – including that the plaintiff has not taken advantage of an absence of the defendant in the past – it is in the interests of justice that the orders of the Associate Judge be set aside, and an opportunity afforded for the further hearing of the motion which, if necessary, I will undertake in the course of this week. 11 Pursuant to UCPR, r 36.16, I set aside the orders made on 18 July 2008. I order that the plaintiff pay the defendant's costs of and thrown away by his non-attendance at the hearing on 18 July 2008. I adjourn the proceedings to 9.15am on Friday, 19 September 2008, before the Registrar. I make no order as to costs of the motion, to the intent that each party bear its own costs. **********