Supreme Court New South Wales Medium Neutral Citation: Blue Mountains Developers Pty Ltd v Harwood; Walmsley v Blue Mountains Developers Pty Ltd [2012] NSWSC 1265 Hearing dates: 9 October 2012 Decision date: 24 October 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: (1) Refer the matter to the Registrar to fix a date for hearing (2) Parties to be heard on costs Catchwords: PROCEDURE - judgments and orders - failure to comply with order - motion to strike-out proceedings for want of prosecution Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Category: Interlocutory applications Parties: In 2009/288379: Plaintiff: Blue Mountains Developers Pty Ltd First Defendant: Christina Margaret Harwood Second Defendant: Neville John Harwood In 2009/288622: Plaintiff: John Ian Walmsley Second Plaintiff: Links (Western) Industries Pty Ltd First Defendant: Blue Mountains Developers Pty Ltd Second Defendant: Neville John Harwood Third Defendant: Christine Margaret Harwood Representation: 2009/288379: Plaintiff: Damien Allen Second and Third Defendant: J.S. Drummond 2009/288622: First defendant: John Hancock Second and Third Defendant: J.S. Drummond 2009/288379 Plaintiff: Proctor & Associates 2009/288622 First Defendant John Hancock, Hancock Solicitors Second and Third Defendants: Michael Battersby, Bateman Battersby Lawyers File Number(s): 2009/288379 2009/288622 Publication restriction: No restriction Judgment 1This is the hearing of the further amended notice of motion filed 8 October 2012 in which the plaintiffs move for the relief in paragraph 3 that the proceedings including the Statement of Claim dated 1 May 2009 be struck out for want of due despatch pursuant to Part 12 r 12.7(1) of the Uniform Civil Procedure Rules (UCPR) in the light of the purposes of s 56 to s 60 of the Civil Procedure Act 2005. 2The motion was brought by the second and third defendants in the proceedings. Mr Drummond appeared for the second and third defendants and Mr Allen of counsel appeared for the plaintiffs. There was no appearance by the first defendant Blue Mountains Developers Pty Ltd. 3The proceedings concern a joint venture for the construction of five townhouse units at a property at Springwood which was owned the second and third defendants. The first plaintiff, Mr Walmsley, was one of the joint venturers. The second plaintiff, Links (Western Industries) Pty Ltd was a builder for the joint venture and the first defendants, Blue Mountains Developers Pty Ltd, was a special purpose vehicle used for the joint venture. In due course the units were completed and most of them sold. 4The relief claimed by Mr Walmsley against the first defendant is for a sum of $50,000 under a certain clause of a draft of the joint venture agreement. The second defendant also claims against the first defendant for sums which include the shortfall on the contract payment for the construction of the units. As against the second and third defendants, the first plaintiff seeks a number of orders including an accounting in respect of the sales of the units. 5There are also another set of proceedings in which the plaintiffs are Blue Mountains Developers Pty Ltd and the defendants are Mr and Mrs Harwood. Those proceedings are 2009/00288379. Those proceedings claim damages in respect of alleged breaches of the joint venture agreement. 6These proceedings were commenced by the filing of the statement of claim on 4 May 2009. On 27 March 2012 Slattery J granted limited leave to the plaintiffs to amend the statement of claim. Thereafter on 10 April 2012, the plaintiffs filed a document which is the first amended statement of claim. On 27 March 2012 Slattery J ordered the plaintiffs to serve all affidavits and other evidence in support of their claim by 1 June 2012. There was no compliance with this order. 7On 5 June 2012 the parties attended a mediation which was unsuccessful. 8The matter was back before his Honour Justice Slattery on 7 May 2012 when there was an application to strike out the proceedings. At paragraph 15 of his Honour's judgment he made 12 different orders. He directed the plaintiff, Blue Mountains Developers Pty Ltd, in other proceedings to serve all its affidavits and other evidence in support of its claim by 1 June 2012. He listed the matter for directions before the Registrar on 20 July for allocation of a hearing date and he also directed that these proceedings number 2009/00288379 be heard together with 2009/00288622 with evidence in one being evidence in the other. The matter went back before Slattery J on 20 July and his Honour has commented on the progress in paragraph 2 in these terms: "2.It is quite disturbing to the Court that orders already made, have not been complied with as yet. Those orders involved a very considerable indulgence to the plaintiffs. It seems to me that this further non-compliance raises very starkly the question of whether the outstanding motion for dismissal of these proceedings, for want of prosecution should not now press ahead." 9It seems that much of the problem related to personal difficulties which the solicitor for the plaintiffs were suffering at that time. His Honour made orders inter alia that: 1.By 3 August 2012 the plaintiffs do the following:- (a)serve all of their evidence any proposed amended pleading. 2.Matter re-listed before Slattery J on 6 August 2012 at 9.30am. 3.Plaintiffs are not able to rely on any evidence in chief not served by 3 August 2012 without the leave of the Court. 10His Honour noted that one of the plaintiffs' affidavit was filed within time but a very substantial affidavit for Mr Walmsley was not filed until later on in the evening of that day. Ultimately his Honour ordered the plaintiffs to pay a sum of $6,000 costs and stayed the proceedings up to and including 2 October 2012. He also gave leave to re-list their motions in both proceedings if the costs were paid by 3 September 2012. The costs were paid as required by the order. On 13 September the matter went before the Registrar who set the matter down for hearing in these proceedings before me. 11The grounds relied upon, apart from the difficulties that have been evident and dealt with by Justice Slattery, are the alleged non-service of the plaintiffs' evidence pursuant to orders made by his Honour. 12Mr Hancock, the solicitor acting for Blue Mountains Developers Pty Ltd swore an affidavit in which he referred to the directions hearing on 6 August. He reported a conversation with counsel for the second and third defendants who had said "the plaintiffs have not put on any evidence in proceeding 622". He says he replied "evidence in one proceedings is evidence in the other proceedings". In a letter of 8 October 2012 he wrote to the solicitors for the Harwoods drawing their attention to Slattery J's order of 7 May 2012 ordering the proceedings to be heard together. He then confirmed that the evidence filed on behalf of his client in the 379 proceedings was relied upon at the 622 proceedings. Naturally of course that was something which was not within his power to do, as he was then not acting for the plaintiffs in the 622 proceedings. They are now represented by Proctor & Associates as a result of some last minute changes to the representation of the plaintiffs. 13In any event, when the matter was heard by me, Mr Allen, counsel for the plaintiffs, committed the plaintiffs in this proceeding to relying simply on the evidence that Blue Mountains Developments had served in the other proceedings and accordingly that is their clear election. 14What is apparent is there was a substantial delay in service of evidence and what was served was evidence in the 379 proceedings. At least by 6 August information was given in a somewhat elliptical manner about their attitude as to their evidence in this case, and it was not until the hearing before me when they finally confirmed in an acceptable way the position now relied upon by the plaintiffs in the present proceedings. 15In these circumstances, I do not think it is appropriate to strike the matter out for want of prosecution and I will refer it to the Registrar to fix a date for hearing. 16I will hear the parties on costs. 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: 06 November 2012