Onik New Energy Australia Pty Limited v Henderson (No 2) [2019] NSWSC 741

Supreme Court New South Wales

Medium Neutral Citation: Onik New Energy Australia Pty Limited v Henderson (No 2) [2019] NSWSC 741 Hearing dates: 11 June 2019 and 14 June 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Jurisdiction: Common Law Before: Lonergan J Decision: Orders sought in motion granted. Catchwords: PROCEDURE – notice of motion – order seeking funds held in Court as security for costs be paid to solicitors for the defendant with no order as to costs – orders made Legislation Cited: Civil Procedure Rules 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Onik New Energy Australia Pty Limited v Henderson [2016] NSWSC 186 Category: Procedural and other rulings Parties: Onik New Energy Australia Pty Ltd (Plaintiff) Charlie Henderson (First Defendant) Taylor Athorn (Second Defendant) Melissa Hayes (Third Defendant) Representation: Solicitors: G B Fernie & Co as agent for Maloney Anderson Legal (Defendants) File Number(s): 2015/133010 Publication restriction: Nil

EX TEMPORE Judgment 1. HER HONOUR: On 7 May 2019, the applicant plaintiff filed a notice of motion seeking an order that $7,000 held as funds in Court that were deposited in respect of an earlier security for costs order be paid to the solicitors for the defendants with no order as to costs. 2. For reasons that have been explained in affidavits authored by Tyler John Stewart Wolff dated 8 December 2016, 17 August 2018 and 13 June 2019, it is not expected for there to be any appearance on behalf of the defendants or, indeed, any opposition to the order sought. 3. The background to the proceedings is lengthy and complex, and I need only, for the purposes of determining this application, refer to a couple of key matters. 4. The first is that the proceedings were commenced in this Court initially by summons filed on 5 May 2015. Those proceedings sought leave to appeal from the decision of a magistrate in April 2015 and various ancillary orders. Those proceedings were determined by Harrison AsJ in her judgment of 9 March 2016: Onik New Energy Australia Pty Limited v Henderson [2016] NSWSC 186. 5. Mr Wolff's affidavits depose to subsequent proceedings between the parties in the Victorian Civil and Administrative Tribunal. Between the parties certain arrangements were made to resolve all of the matters in issue between them by way of terms of settlement in the Victorian Civil and Administrative Tribunal, and also to deal with the release of the $7,000 that had been paid into Court by the plaintiff by way of security for the defendants' costs in the initial proceedings in this Court. 6. Some confusion arose between the time these accommodations were reached between the parties in late 2016 and now as to what happened with the original Consent Order signed by and on behalf of, all the parties that agreed to the release of the $7,000 that was sitting with the Court. 7. On 9 December 2016, the question of the release of the funds was raised before Schmidt J and she made an order in the following terms: "On the filing of the original consent orders in terms of annexure A of the affidavit to Tyler Wolff sworn 18 December 2016, the orders in accordance with that annexure will be made and entered." 1. This is a reference to the fact that before her Honour, it seems, only a photocopy of the relevant Consent Orders was available. Prior to that order, the original Consent Order had actually been provided to the Court, but because of the fact that it was a combination of original signatures as well as a photocopied signature, it did not "look original" it was the view of the Prothonotary or Registry staff that the document held on the court file was not the original consent order. 2. I have now had explained to me, by virtue of Mr Wolff's 13 June 2019 affidavit, that the document sitting on the court file in 2016 was indeed the Consent Order that had been signed in original form on behalf of the defendants by Mr Wolff, and that that document bore the signature of a Mr Robin Grainger, it having been transmitted to Mr Wolff by Mr Grainger. That is the Consent Order that was then forwarded to the Court. 3. I am satisfied that sufficient efforts have been made to locate Mr Grainger and obtain his views and co-operation on the release of this sum from Court. I am satisfied, in the circumstances, that it is appropriate to rely upon the form of Consent Order that is on the court file having been forwarded to the Court with a letter dated 14 September 2015, incorrectly, but date stamped received by the Supreme Court of New South Wales on 15 November 2016. That letter and the attached consent orders having been marked exhibit E on this application. 4. In the circumstances, I consider it consistent with s 56 of the Civil Procedure Act 2005 (NSW), and consistent with the overriding purpose rule, that I make the order sought in the notice of motion to facilitate the just, quick and cheap disposal of this outstanding detail which is, in effect, a hangover from proceedings completed quite some time ago. 5. Section 56 requires that in exercising any power or application of rules in this Court in civil proceedings, I must facilitate the just, quick and cheap resolution of the real issues in the proceedings and give effect to that overriding purpose when I exercise any power given to me by the Civil Procedure Act or by the Uniform Civil Procedure Rules 2005 (NSW) of the Court. 6. I have received assistance from the solicitors acting for the plaintiff by the provision of detailed affidavits including a further detailed affidavit to assist in tracking through the slightly messy history of the Consent Orders in these proceedings. 7. In my view, the proper course is to grant the orders sought in the notice of motion.