Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited

[2019] NSWSC 1913

Supreme Court

New South Wales

Medium Neutral Citation:

Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited [2019] NSWSC 1913

Hearing dates:

25 October 2019

Date of orders:

25 October 2019

Decision date:

25 October 2019

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

(1) The Defendant is to file and serve an Amended Defence by 15 November 2019.

(2)    The Defendant is to file and serve its evidence by 6 December 2019.

(3)    The Plaintiff is to file and serve any further evidence by 31 January 2020.

(4)    The proceedings are to be listed for directions at 9.00 am on 7 February 2020 before the Common Law Registrar.

Catchwords:

PRACTICE AND PROCEDURE - delay in progress of proceedings - necessity for parties to take steps to comply with duty under s.56 Civil Procedure Act 2005 - orders made

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

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Texts Cited:

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Category:

Procedural and other rulings

Parties:

Apollo Kitchens (NSW) Pty Limited (Plaintiff)
Goway Travel Pty Limited (Defendant)

Representation:

Counsel:
Mr F Fahmy, Solicitor (Plaintiff)
Ms S Scott (Defendant)

Solicitors:
Blackstone Waterhouse (Plaintiff)
Richard Glover Law Practice (Defendant)

File Number(s):

2018/253671

Publication restriction:

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Judgment

1. JOHNSON J: On 17 August 2018 the Plaintiff, Apollo Kitchens (NSW) Pty Ltd, commenced proceedings against the Defendant, Goway Travel Pty Ltd, by Statement of Claim seeking an order that the Defendant pay the Plaintiff the sum of $698,842.25 together with interest and costs.

2. The Plaintiff’s claim relates to the provision by the Defendant to the Plaintiff of travel packages under a scheme described as the Staff Travel and/or Family and Friends Program.

3. The Statement of Claim alleges that between 19 September 2014 and 20 July 2017, the Plaintiff purchased travel packages from the Defendant in the sum of $656,058.00, together with a claim for $86,708.58 for what was said to be overcharging by the Defendant of the Plaintiff’s American Express card with respect to a number of items.

4. On 1 November 2018, the Defendant filed a Defence in these proceedings. The Defence contains some admissions of formal matters together with a large number of non-admissions, and a general denial that the Plaintiff was entitled to relief. The defence was verified by Peter Jerome Lacy, a director of the Defendant. Mr Lacy apparently resides in Canada. The affidavit verifying asserted, in accordance with usual practice, that after reasonable enquiries Mr Lacy did not know whether or not the allegations of fact which were not admitted in the Defence were true.

5. These proceedings first came before Registrar Bradford on 29 November 2018, and have been before the Registrar on eight occasions, with the last listing being on 27 September 2019.

6. On 21 December 2018, the Plaintiff filed and served an affidavit of Peter Bader affirmed 20 December 2018, in compliance with the order that the Plaintiff file its evidence by that time.

7. Thereafter, when the matter has been before the Court, the Defendant has sought to defer the filing and service of its evidence on numerous occasions.

8. The Defendant has commenced proceedings in the Equity Division against a person the Court understands is a former employee of the Defendant, Ms Lisa Comito. The Equity Division proceedings between the present Defendant and Ms Comito have led to the making of Anton Piller orders and other associated orders.

9. There is an inter-relationship between the Equity Division proceedings and the Common Law proceedings because, on the Plaintiff’s evidence, it was Ms Comito with whom the Plaintiff was dealing in the provision of the travel packages which are the subject of this litigation.

10. The multiple appearances and ongoing delay in progress in the present litigation have been explained in affidavits filed on behalf of the Defendant, which indicate the steps being taken to obtain access to documents and other material held by Ms Comito, so that the Defendant in these proceedings can obtain a complete and clear understanding of the position with respect to travel packages apparently sold by Ms Comito.

11. On 27 September 2019, Registrar Bradford ordered that the matter be listed before the Common Law Duty Judge today, with the parties to file and serve detailed affidavit evidence as to the preparation of the case, and specifically as regards to what steps the Defendant has taken to progress the matter.

12. No further affidavit has been filed on behalf of the Defendant since 27 September 2019.

13. This morning, counsel appears for the Defendant, and a solicitor for the Plaintiff. Ms Scott, counsel for the Defendant, informs the Court that she is involved in the related proceedings on behalf of the Defendant, and that there are steps being taken to progress the matter so that the Defendant will be in a position to file an Amended Defence and put on its evidence within a period this year.

14. Mr Fahmy, solicitor for the Plaintiff, has urged the Court to make orders which would allow the Defendant until mid-November to put on any further evidence, with the Plaintiff to have another two weeks thereafter to put on evidence. Mr Fahmy asked the Court to allocate a hearing date with an estimate of one day. Ms Scott has proposed a timetable which would see a number of procedural steps being taken between now and January 2020, with the matter to be brought before the Registrar on 7 February 2020 for further directions.

15. In examining the file before Court today, I was significantly concerned about the delay in progress of the matter, having clearly in mind the obligations of the Court and the parties under s.56 Civil Procedure Act 2005. Nearly a year has passed since an uninformative Defence was filed by the Defendant in these proceedings. Although there may be some difficulties in obtaining documents and a complete picture as to the activities of Ms Comito by way of the Equity Division proceedings, a very significant period of time has passed. The evidence indicates the large number of emails and other messages which it is necessary for the Defendant to analyse and understand before putting on a meaningful response to the Plaintiff’s claim in these proceedings.

16. In my view, the time has come for an outer limit to be put on these steps. I had in mind before Court the use of a guillotine order to ensure that full attention was given by the Defendant to strict compliance with the orders of the Court. Having heard from counsel for the Defendant, who has assured the Court there are proper steps being taken by and on behalf of the Defendant, I will not express the orders to be made as guillotine orders. However, the parties should expect, that if there is not strict compliance with these orders, then the next step may involve orders of that type in the event that there is non-compliance.

17. Having said that, I will approach the matter upon the basis, given what has been said in Court today, that these orders will be complied with, and it will not be necessary for a Court to consider the use of a more extreme measure.

18. I will allow the Defendant until 15 November 2019 to file and serve an Amended Defence. I will allow the Defendant until 6 December 2019 to file and serve its evidence. This appears to be a more than reasonable time given the period which has passed, and the steps which have been taken with respect to the Equity Division proceedings.

19. I will then allow the Plaintiff until 31 January 2020 to file and serve any further evidence. The final direction will be to place the matter before the Common Law Registrar for directions at 9.00 am on 7 February 2020.

20. If these steps are taken, there ought be no good reason why a hearing date could not be allocated, with an accurate estimate being given for that purpose.

21. The parties should expect that any Registrar or Judge who comes to look at these proceedings from now on will have squarely in mind the requirements of the parties to take all steps to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

22. I make the following orders:

1. The Defendant is to file and serve an Amended Defence by 15 November 2019.

2. The Defendant is to file and serve its evidence by 6 December 2019.

3. The Plaintiff is to file and serve any further evidence by 31 January 2020.

4. The proceedings are to be listed for directions at 9.00 am on 7 February 2020 before the Common Law Registrar.

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Decision last updated: 06 July 2020