Land and Environment Court New South Wales Medium Neutral Citation: Mueller v Austin (No 2) [2011] NSWLEC 201 Decision date: 14 November 2011 Jurisdiction: Class 2 Before: Pepper J Decision: The Court orders that unless an application to join a party to replace the first applicant is made within three days, the proceedings brought by the first applicant are dismissed pursuant to r 6.31 of the Uniform Civil Procedure Rules 2005 and upon such dismissal, caveat AE217720C will extinguish Catchwords: CAVEATS: application to dismiss proceedings and to extinguish caveat upon death of applicant Legislation Cited: Uniform Civil Procedure Rules 2005, rr 6.31, 12.7 Water Management Act 2000 Cases Cited: Mueller v Austin [2010] NSWLEC 137 Category: Procedural and other rulings Parties: Heide Mueller (First Aplicant) Grete Maria Hauss Van Aken (Second Applicant) John Austin (First Respondent) Elizabeth Austin (Second Respondent) Representation: Mr B O'Donnell (First Applicant) Mr A Gruzman (First and Second Respondent) Kell Moore Lawyers (First and Second Applicant) Cappello Rowe Lawyers (First and Second Respondent) File Number(s): 20505 of 2010 Ex Tempore Judgment Application to Dismiss Proceedings upon Death of Remaining Applicant 1By notice of motion filed 31 October 2011 the respondents, Mr John Austin and Ms Elizabeth Austin, applied to dismiss proceedings for an extension of the operation of caveat AE217720C registered under the Water and Access Licence Register pursuant to the Water Management Act 2000 ("the caveat"). 2The background to these proceedings is helpfully set out in the decision of Biscoe J in Mueller v Austin [2010] NSWLEC 137 (at [3]-[9]). I gratefully adopt, without repeating here, what is contained in that judgment. 3In that application, Biscoe J extended the operation of the caveat until the Court determined the principal proceedings in the matter. Since then the caveat has been extended a number of times while the parties have waited for the Minister for Water to make a decision with bearing upon the outcome of the principal proceedings. 4Critically, since the Class 2 application was filed and since the decision of Biscoe J was determined on 2 July 2010, the first applicant has died intestate. The first applicant was residing in Germany at the time of her death. 5An administrator has yet to be appointed to administer the first applicant's estate, although the Court was told that an appointment is "imminent". Having said this, the parties have frankly conceded that the issue of the appointment of an administrator has been ongoing for several months. 6The second applicant is the sister of the first applicant. The second applicant ceased to participate in the proceedings on 26 October 2011 by way of discontinuance. 7It is the wish of the second applicant and the respondents, who have entered into a confidential deed of settlement in respect of the underlying dispute giving rise to the proceedings, that these proceedings be terminated. The continuing existence of the caveat is acting as a barrier to the parties giving full effect to the terms of the deed. 8The respondents relied on three affidavits in support of their application: (a) two sworn by Mr Matthew Rodgers on 25 October 2011 and 11 November 2011 respectively; and (b) one sworn by Mr Andrew Rowe on 31 October 2011. 9Mr Rodgers is a solicitor with Kell Moore Pty Ltd, the solicitors that have conduct of the matter on behalf of the second applicant. Until her death, Mr Rodgers received instructions from the first applicant. 10Mr Rodgers deposes that he has been receiving regular updates from the second applicant and her son in relation to the estate of the first applicant. In particular, he states that the family of the first applicant have retained lawyers in the name of Schweizer Kobras Pty Ltd ("Schweizer Kobras") to assist with the administration of the estate. There have, however, been complications with time delays caused by the different legal jurisdictions and requirements for legal procedures to be completed in Germany prior to seeking letters of administration in Australia. 11It is proposed to appoint Mr Michael Kobras of Schweizer Kobras to be the administrator of the Australian estate of the first applicant. There has been an application made to the Supreme Court of New South Wales by Mr Kobras to this effect, but as at 25 October 2011 this application has not been finalised. 12Mr Rodgers states that the Class 2 proceedings became superfluous upon the exchange of the confidential deed of settlement. It is on this basis, he deposes, that the respondents seek the extinguishment of the caveat and the dismissal of the proceedings. 13In his second affidavit, Mr Rodgers further deposes to the delay in finalising the appointment of the administrator. He also deposes that he has carried out investigations and that there is currently no other person with standing who has the ability to discontinue the proceedings on behalf of the first applicant in circumstances where an administrator has not yet been appointed and no will or executor exists. 14Mr Rowe, in his affidavit, corroborates this evidence and reiterates the view that while the proceedings remain on foot and the caveat remains in place the parties are unable to give effect to the terms of the settlement that they have reached. Appropriate Power to Dismiss Proceedings 15The respondents rely on either of two bases for the dismissal of the proceedings. First r 12.7(1) of the Uniform Civil Procedure Rules 2005 ("UCPR") that states: 12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. 16Second, r 6.31 of the UCPR that relevantly provides that: 6.31 Court may dismiss proceedings not prosecuted following death of party (1) This rule applies to any proceedings in which: (a) a party dies, but a cause of action in the proceedings survives his or her death, and (b) an order for the joinder of a party to replace the deceased party is not made within 3 months after the death. (2) The court may order that, unless an application to join a party to replace the deceased party is made within a specified time, the proceedings in relation to the cause of action concerned be dismissed. 17To the extent that it has been suggested there has been a want of prosecution by the first applicant, this has been caused by her death and the delay described above in appointing an administrator. It has not been caused by any intentional inactivity on the part of the first applicant or her estate. 18In my view, the evidence discloses that it is appropriate to dismiss the proceedings. However, given the circumstances described above giving rise to the application; given that the Court has been told that the appointment of an administrator is forthcoming; and given that the likely beneficiaries of the first applicant's estate are all located overseas, I am of the opinion that it is more prudent to deal with the application, and therefore to dismiss the proceedings, pursuant to r 6.31 of the UCPR, rather than r 12.7. 19But the Court is minded to limit the time for an application to join a party to replace the first applicant to three days in light of the delay in finalising the proceedings to date. Orders 20Accordingly, the orders of the Court are as follows: (1) the Court orders that unless an application to join a party to replace the first applicant is made within three days, the proceedings brought by the first applicant are dismissed pursuant to r 6.31 of the Uniform Civil Procedure Rules 2005 and upon such dismissal, caveat AE217720C will extinguish; and (2) the exhibits are to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2011