Stephen Dereke Harper & ors v Drew Scott James & ors [2011] NSWSC 400

Supreme Court New South Wales

Medium Neutral Citation: Stephen Dereke Harper & ors v Drew Scott James & ors [2011] NSWSC 400 Hearing dates: 24 March 2011 Decision date: 24 March 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Leave to discontinue proceedings granted. Catchwords: PRACTICE AND PROCEDURE - notice of discontinuance - consent of one of the parties not obtained - leave granted to discontinue proceedings as no active participation by non-consenting party. Legislation Cited: Uniform Civil Procedure Rules 2005, r 12.1, r 42.19. Category: Procedural and other rulings Parties: Stephen Dereke Harper: (first plaintiff/cross defendant) Benjamin Geoffrey Martin: (second plaintiff) Robert Reginald Wilson: (third plaintiff) Mark William Mackrell: (fourth plaintiff) Peter Gordon West: (fifth plaintiff) Drew Scott James: (first defendant/cross claimant) Stefan Mark Jury: (second defendant) John Reynold Gresson: (third defendant) Meredith Lee Nicol and Mark Love as Executors of the Estate of the Late Ian John: (fourth defendant) Representation: Counsel: Mr R Allsop (solicitor) (plaintiffs) Solicitors: Holman Webb Lawyers (plaintiffs/cross-claimant) Addisons (first defendant) Williams Love & Nicol (fourth defendant) File Number(s): 2008/279002

Judgment ( ex tempore ) 1HIS HONOUR: These proceedings, which are set down for hearing to commence today, have apparently settled at mediation. The plaintiffs/cross-defendants, together with the first defendant/cross-claimant, wish to discontinue their respective claims. 2The notice of discontinuance, handed up today by the solicitor for the plaintiff/cross-defendant, asserts that each active party consents to the discontinuance. 3Uniform Civil Procedure Rules, r 12.1 provides that the plaintiff (and for present purposes, this includes a cross-claimant) may, by filing a notice of discontinuance, discontinue the proceedings - so far as they concern a particular defendant - with the consent of each other active party, or with the leave of the court. "Active party" is defined in the Dictionary to Uniform Civil Procedure Rules as "a party who has an address for service in the proceedings, other than a party against whom judgment has been entered, or a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued." As well as the first defendant, the fourth defendant has filed an appearance and therefore has an address for service in the proceedings, although it appears that it has not otherwise taken an active role in them. 4As there is no consent from the fourth defendant, it is not open to discontinue by consent in this case. However, on the basis that the file discloses no other activity on the part of the fourth defendant and the plaintiffs' solicitor's assurance that the fourth defendant has not otherwise been actively involved in the proceedings, I am prepared to grant leave to discontinue under r 12.1. 5The proposed notice of discontinuance does not bear the certificate referred to in r 12.1(2), certifying that the plaintiff does not represent any other person. It will be necessary for notices of discontinuance to be filed by the plaintiffs, bearing such a certificate, and also by the cross-claimant, bearing a similar certificate. 6The proposed notice of discontinuance contains no terms as to costs. Under r 42.19, unless the court otherwise orders, or the notice otherwise provides, the discontinuing party must pay the other party's costs. However, it is apparently intended - so I am informed - that each party bear their own costs. 7By consent of the plaintiffs and the first defendant, I grant leave to the plaintiffs to discontinue the whole of the proceedings against the first defendant. I order that notwithstanding r 42.19(2), the plaintiff need not pay the first defendant's costs, to the intent that each of those parties bear their own costs. 8By consent of the first defendant/cross-claimant and the plaintiffs/cross defendants, I grant leave to the first defendant to discontinue the cross-claim. I order that notwithstanding r 42.19, the cross-claimant need not pay the cross-defendants' costs, to the intent that each party to the cross claim bear its own costs. 9I grant leave to the plaintiff to discontinue the whole of the proceedings against the second, third, fourth and fifth defendants. 10In order to effect the discontinuance, it will be necessary for the plaintiffs and the cross-claimant to file notices of discontinuance in the registry, bearing the appropriate certificates referred to in UCPR r 12.1(2)(a).