Supreme Court New South Wales Medium Neutral Citation: Capolupo v Chanthanavanheuang [2014] NSWSC 265 Hearing dates: 14 March 2014 Decision date: 14 March 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Orders 1, 2 and 3 of motion granted. Catchwords: PROCEDURE - notice of motion - order seeking the amended second cross-claim be dismissed - granted - Rule 12.7 of the Uniform Civil Procedure Rules - cross-claimant has not prosecuted amended second cross-claim with due despatch - order seeking cross-claimant to pay cross-defendant's costs on an ordinary basis - granted Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia (No. 4) [2013] NSWSC 761 Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 1326 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Ozkan Erten v Kellogg Superannuation Pty Limited [2013] NSWSC 1780 Category: Procedural and other rulings Parties: John Capolupo (Plaintiff) Soth Chanthavanheuang (First Defendant/Cross-Claimant) South Western Sydney Local Health Network (Second Defendant) CGU Insurance (Cross-Defendant) Representation: Solicitors: Kennedys (Cross-Defendant) File Number(s): 2011/135468 Publication restriction: None ex tempore Judgment 1HER HONOUR: These proceedings were commenced in April 2011. They concern a claim made by the plaintiff, Mr Capolupo, against two defendants as a result of an injury the plaintiff seems to have sustained in September 2008 during a remedial massage and rotation of his neck. 2The proceedings against the second defendant were concluded with a consent judgment entered on 28 September 2012. The first defendant Mr Chanthavanheuang, brought a cross-claim against CGU Insurance Limited, his insurer at the relevant time. CGU denied liability. 3Today before the Court is a motion brought by CGU in which it seeks orders that the amended second cross-claim be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 on the basis that it has not been prosecuted with due dispatch. It also seeks an order for its costs of the proceedings pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in a fixed sum of $15,000. 4The motion is supported by an affidavit sworn on 21 February 2014 by Miss Hartwell, CGU's solicitor, as well as by an affidavit sworn by Miss Faggionato, another solicitor who is assisting Miss Hartwell, and by an affidavit of service sworn by Mr Spartalis in which he discloses to having personally served the motion and Miss Hartwell's affidavit on Mr Chanthavanheuang on 28 February 2014. 5Miss Faggionato deposes to other steps taken to ensure that Mr Chanthavanheuang was aware of today's hearing. There is no appearance by Mr Chanthavanheuang to oppose the orders sought in the motion. That accords with the history of the proceedings outlined by Miss Hartwell in her affidavit, from which it appears that for a considerable time now Mr Chanthavanheuang has simply not been active in the matter, following upon his former solicitors having ceased to act. Her affidavit refers to numerous occasions on which the matter came before the Registrar upon which there was no appearance and steps taken subsequently to inform him as to what had transpired. 6On the evidence it is apparent that for some time now Mr Chanthavanheuang has simply not taken the necessary steps to pursue his defence or cross-claim. The orders sought in the motion have to be approached in the light of the obligations imposed on the Court and the parties by s 56 of the Civil Procedure Act, the principal obligation being that the Court's powers be exercised in order to facilitate the just, quick and cheap resolution of the proceedings. 7As was submitted for CGU, an order dismissing proceedings for want of prosecution is an exceptional order and not one made lightly. An evidentiary foundation has to be established upon which the Court's discretion can justly be exercised to make such an order. 8I am satisfied that the evidence in this case well establishes such a foundation. Mr Chanthavanheuang has had a fair opportunity to prosecute his case and to defend this motion and has taken no steps to do so. In the circumstances, an order dismissing his cross-claim is what justice clearly demands. 9As to the application for a costs order, again there is no question as to the Court's jurisdiction to make such an order or the principles upon which that discretion should be exercised. They are as discussed by Giles JA in Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 at [22]. 10Miss Hartwell has outlined in her affidavit not only the work undertaken in the proceedings the subject of the costs application and the basis upon which costs and disbursements have been billed and paid, but also an explanation of what has yet to be billed and paid and the disbursements which have been incurred. She has also given an explanation of what would be involved were the Court to make an order for assessment of costs under the Legal Profession Act 2004 (NSW), which she expects would take six to 12 months to pursue to their end and would involve considerable additional cost, which Mr Chanthavanheuang would also have to bear. 11In the circumstances outlined in her affidavit, I am satisfied that in accordance with the applicable principles, the order sought is a just one. What is proposed by way of the $15,000 order amounts to a discount on total costs of something in the order of 41%. That is well within the types of discounts applied in other cases where it has been found appropriate to make an order such as this (see Ozkan Erten v Kellogg Superannuation Pty Limited [2013] NSWSC 1780, per Robb J; Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 1326, per Darke J; C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia (No. 4) [2013] NSWSC 761, per Slattery J). 12For those reasons, I make the orders sought in terms of orders 1, 2 and 3 of the motion. ********** 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: 18 March 2014