Gujarat NRE Australia Pty Ltd & Anor v Gary Alexander Williams & Ors [2009] NSWSC 963

New South Wales Supreme Court

CITATION : Gujarat NRE Australia Pty Ltd & Anor v Gary Alexander Williams & Ors [2009] NSWSC 963

HEARING DATE(S) : 11 September 2009 JURISDICTION : Equity - Commercial List

JUDGMENT OF : Bergin CJ in Eq

EX TEMPORE JUDGMENT DATE : 11 September 2009

CATCHWORDS : [Orders] - Non-compliance with Court orders - [Dismissal] - Dismissal of proceedings for want of due despatch - Numerous failures to serve evidence - No proper evidence of steps in place to prepare matter for hearing

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

PARTIES : Gujarat NRE Australia Pty Ltd (Plaintiff) Gary Alexander Williams (First Defendant)

FILE NUMBER(S) : SC 50056 of 2006

COUNSEL : R Horsley (Plaintiff) T Tzovaras (Solicitor) (First Defendant)

SOLICITORS : Gillard Consulting Lawyers (Plaintiff) Tzovaras Legal (First Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN CJ in Eq

11 SEPTEMBER 2009

50056 OF 2006 GUJARAT NRE AUSTRALIA PTY LTD & ANOR v GARY ALEXANDER WILLIAMS & ORS JUDGMENT 1 This is an application brought by Notice of Motion by the first defendant, Gary Alexander Williams (the defendant), for the dismissal of the main proceedings against him on the basis that the plaintiff has not prosecuted the proceedings with due despatch. The application is made pursuant to Pt 12 r 7 (1) of the Uniform Civil Procedure Rules 2005. 2 The Motion was filed on 14 July 2009 pursuant to leave granted by the Commercial List Judge on 10 July 2009. The evidence relied upon by the applicant is that of Ted Dorotheos Tzovaras, solicitor, sworn on 14 July 2009. The evidence relied upon by the plaintiffs is that of Brian James Gillard, solicitor, sworn on 17 July 2009. The defendant also relied on parts of the affidavit of Mr Gillard sworn 7 July 2009. 3 The proceedings were commenced three and a half years ago on 28 April 2006 and have been listed in the Commercial List on numerous occasions. In July 2006 the first order was made for the plaintiffs to serve any affidavit on which they intended to rely by 13 October 2006. The defendants and the cross-claimants were to file any affidavits by 10 November 2006 and the plaintiffs were to file and serve any affidavits in reply by 24 November 2006. Orders were also made for discovery. No party complied with the Court's orders. 4 It was in the latter part of 2006 that the defendants sought security for costs. Orders were made for security in October 2006 and were complied with in November 2006. A fresh timetable was made on 17 November 2006 repeating the orders that had been made on 21 July 2006 with new dates. No party complied with those orders, however the parties exchanged categories of documents, it appears in an informal way. Lists of documents were not filed. 5 A year after the first orders were made the Court made almost identical orders again. No party complied with those orders. On 12 October 2007 the same orders were made and the same outcome occurred. On 15 February 2008 orders were made for lists of documents to be filed and inspection to occur and the same orders were made for the filing of evidence, of course with new dates. No party complied with any of those orders. 6 A year ago in September 2008 the plaintiffs decided they wanted to amend their pleadings. On 17 October 2008 the plaintiffs were given leave to file an amended Commercial List Statement by 27 October 2008. It was not until 19 December 2008 that an Amended Commercial List Statement was filed and on 20 February 2009 the Court again made orders for discovery, this time for supplementary discovery, and once again for the plaintiffs to serve their evidence and the defendants to serve their evidence. Needless to say the same outcome occurred, although I should say that the defendant's position is that no supplementary discovery is necessary on his part because everything has been discovered. 7 On 20 February 2009 I listed the matter for hearing on 3 August 2009 for ten days. To state the obvious, it was necessary for the plaintiffs to get their evidence ready for that hearing. Obviously if the defendants were going to prosecute their Cross-Claims the same had to occur on their side. 8 On 7 July 2009 the plaintiffs filed a Motion for the vacation of the trial date. Mr Gillard's affidavit in support of that application referred to some staffing changes at his firm, presumably to persuade the Court that he was under pressure at work and needed additional time to get the evidence ready. His affidavit evidence included: