Andresakis & Skouteris v Alexus Holdings Pty Ltd

The appeal concerned an application to set aside a preliminary dismissal order made by the District Court of New South Wales. The original dismissal order was made due to breaches of District Court Practice Note 33 and procedural directions. The application to set aside this order was made approximately three years after it was initially granted.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to set aside the preliminary dismissal order. This required the court to consider the principles governing the setting aside of such orders, particularly in circumstances involving significant delay and the conduct of legal representatives.

The Court of Appeal reasoned that the question of whether a preliminary dismissal order should be set aside ultimately turns on the demands of justice between the parties. In assessing this, the court must consider whether a satisfactory explanation and excuse for the delay in making the application has been provided, along with an explanation for the original failure that led to the dismissal, and whether these failures have been cured. While factors such as the availability of a claim against former solicitors and the expiration of limitation periods are relevant, they are not determinative. The primary judge had accepted that a substantial part of the delay was attributable to the plaintiff's former solicitors failing to inform them of the dismissal order, but noted a two-month unexplained delay after the plaintiff became aware of the order. Crucially, there was no actual prejudice to the defendants if the order were set aside. Despite these considerations, the Court of Appeal upheld the primary judge's decision.

The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents.