Maylord Equity Management Pty Ltd as trustee of the Batterham Retirement Fund v Nauer (No. 2) [2017] NSWSC 1467

Supreme Court New South Wales

Medium Neutral Citation: Maylord Equity Management Pty Ltd as trustee of the Batterham Retirement Fund v Nauer (No. 2) [2017] NSWSC 1467 Hearing dates: 1 September 2017 Date of orders: 06 November 2017 Decision date: 06 November 2017 Jurisdiction: Equity Before: Slattery J Decision: Proceedings dismissed for want of prosecution. Catchwords: CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – want of due dispatch – defendant applies for dismissal of proceedings for want of due dispatch - previous costs orders made against plaintiff and assessed in specific amounts for payment – under the previous costs orders the plaintiff's right to continue the proceedings is made conditional on its compliance with previous costs orders – plaintiff does not pay previous costs orders – whether plaintiff likely to be able to meet previous costs orders in the future – whether proceedings should now be dismissed for want of due dispatch, if it is improbable that the past costs orders will be complied with in future – whether third party has conducted proceedings for his own benefit through an impecunious corporate plaintiff – whether any costs order made against the plaintiff should be made against the third party. Legislation Cited: Civil Procedure Act 2005 Superannuation Industry (Supervision) Act 1993 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006 Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119. Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Hamod v New South Wales [2011] NSWCA 375 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Hadid v Lenfest Communications Inc [2000] FCA 628 Harrison v Schipp (2002) 54 NSWLR 738 Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Limited (2009) 239 CLR 75 Maylord Equity Management Pty Ltd as trustee of the Batterham Retirement Fund v Nauer [2017] NSWSC 634 Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811. Stollznow v Calvert (1980) 2 NSWLR 749 United Dominions Corporation Limited v Brian Pty Limited (1985) 157 CLR 1 Ulowski v Miller [1968] SASR 277 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) Category: Procedural and other rulings Parties: Maylord Equity Management Pty Ltd (ACN 0943 852 892) as trustee of the Batterham Retirement Fund (Plaintiff) Marcel Andre Nauer (Defendant) Representation: Counsel: