Arinson Pty Limited v Valuer General; Omaya Investments Pty Limited v Valuer General
[2017] NSWLEC 164
•23 November 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Arinson Pty Limited v Valuer General; Omaya Holding Pty Ltd; Omaya Investments Pty Limited v Valuer General [2017] NSWLEC 164 Hearing dates: 23 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Jurisdiction: Class 3 Before: Moore J Decision: Orders at [32]
Catchwords: STRIKEOUT APPLICATION - failure of each Applicant to comply with directions - engagement of three sets of solicitors, each of which subsequently ceased to act - failure to appear - failure to file required material - strikeout applications pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005 - service of Notices of Motion on each Applicant - each matter called outside court - no appearance at hearing of strikeout applications - each matter struck out with costs ordered in favour of the Respondent Legislation Cited: Uniform Civil Procedure Rules 2005, Pt 12 r 7 Category: Procedural and other rulings Parties: Arinson Pty Limited (Applicant in matters 183361, 183371 and 183400 of 2016)
Valuer General (Respondent in all matters)
Omaya Holding Pty Ltd (Applicant in matters 186765 and 183340 of 2016)
Omaya Investments Pty Limited (Applicant in matter 183362 of 2016)Representation: Counsel:
Solicitors:
No appearance (Applicant/Respondent on the Motion in each matter)
Mr S Nash, barrister (Respondent/Applicant on the Motion in all matters)
Crown Solicitors Office (Respondent/Applicant on the Motion in all matters)
File Number(s): 183340, 183361, 183362, 183371, 183400 and 186765 of 2016 Publication restriction: No
EX TEMPORE Judgment
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HIS HONOUR: These six proceedings have been brought by related entities seeking to challenge a number of statutory valuations concerning two properties located in Sydney's inner western suburbs.
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The matters were originally set down for a directions hearing on 9 October 2015, having been filed on 11 September of that year. The matter was set down for a conciliation conference which was to take place on 15 December 2015. Prior to that conciliation conference, the Applicant in each of the proceedings was required to undertake a number of procedural steps in preparation for the conciliation conference. The Applicant in each of the proceedings did none of the steps that they were directed to have undertaken.
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On 15 December 2015, the conciliation conference was adjourned until 18 March 2016. Again, the Applicants in the various proceedings were directed to undertake a number of preparatory steps for the adjourned conciliation conference. The Applicant, relevantly, in each of the proceedings did not undertake any of those required activities.
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On 11 March 2016, shortly prior to the proposed resumption of the conciliation conference, the solicitors then acting for the various Applicants filed a Notice of Ceasing to Act. Shortly thereafter, indeed, on the day prior to the resumption of the conciliation conference, a new firm of solicitors filed a Notice of Appearance in each of the matters.
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The following day, the conciliation conference was adjourned for a further month - with a requirement that the Applicants carry out a number of further preparatory tasks prior to the resumption of the conciliation conference.
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When that conciliation process resumed on 18 April 2016, all of those tasks had not yet been carried out by the various Applicants. The Applicants were required to address the outstanding matters by 29 April 2016 and the conciliation conference was adjourned until 17 June 2016. When the conciliation conference resumed, the various matters that remained in issue between the parties were unable to be resolved and the conciliation process was concluded.
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On 1 July 2016, the matters returned for a directions hearing at which the various Applicants were directed to undertake a number of activities, including preparation of evidence leading up to a proposed hearing. The matter was set down, in each instance, for further directions on 18 November 2016.
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None of the directions made on 1 July 2016 were complied with in any of the matters.
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On 14 November 2016, the second firm of solicitors filed Notices of Intention of Ceasing to Act.
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Four days later, I directed that the matters be adjourned for a further directions hearing on 2 December 2016. The solicitor who had filed the Notices of Intention of Ceasing to Act was directed to inform each of the Applicants that they were required to appear on 2 December 2016, failing which the matters would be dismissed.
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On 2 December 2016, the matters returned before me for mention. Counsel appeared for the Applicant in each of the proceedings. I was advised that the Applicants were proposing to re-engage the second firm of solicitors. I was informed that that firm required a further week in which to consider their position and I adjourned the matter until 9 December 2016.
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On that date, all six matters again came before me. There was no appearance for any of the Applicants on that occasion. I directed that the solicitor representing the Valuer General write to the Applicant in each of the proceedings indicating that the matter was to be adjourned for further directions on 10 February 2017 and that, if there was not an adequate explanation why there had been continuing delay and failure to give effect to the various timetable directions that had previously been made, the appeal in each matter would be dismissed.
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On 10 February 2017, the matters came before me again and the Respondent was directed to file motions seeking to have each of the matters dismissed on the basis of want of prosecution.
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On 17 February 2017, those Notices of Motion were filed.
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On 3 March 2017, the date upon which each of those motions had been made returnable, counsel appeared on behalf of each of the Applicants. It was indicated to me that the Applicants continued to wish to pursue their case. I directed that the motions be heard on 28 March 2017 and the various Applicants were invited to file and serve their affidavits and submissions by 16 March 2017, with a timetable set for the filing and serving of submissions on behalf of the Valuer General.
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On 14 March 2107, a third firm of solicitors filed Notices of Appointment of Solicitor on behalf of the Applicants.
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On 16 March 2017, the Applicants filed and served an affidavit of that new solicitor which set out to explain why matters had not been pursued over the previous extensive period since the proceedings were commenced in September 2015.
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On 24 March 2017, Consent Orders were made that encompassed some elements of costs and directions for the Applicants in each of the proceedings to file and serve their non-valuation evidence by the end of April 2017. By the relevant date in April 2017, Mr Row, solicitor for the Valuer General in each of the matters, deposed that he had been served with expert reports from town planners.
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On 5 May 2017, further directions were made concerning the Respondent’s evidence and parties’ non-valuation expert evidence to be provided by 30 June 2017.
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On 17 May 2017, these matters were set down for hearing for five days, commencing on 11 December 2017.
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In early July 2017, the Valuer General filed and served the relevant expert report of its town planner on the various valuation appeals.
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Mr Row further deposes that, on 25 July 2017, he had had contact from the Valuer General's expert town planner who had indicated to him that the Applicants' town planning expert (who had provided material in each of the six appeals) had been instructed to refrain from doing any further work in the proceedings.
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On 4 August 2017, Mr Row further deposes he spoke to a solicitor in the third firm of solicitors who had appeared for each of the Applicants and he had been advised by her that that firm was in the process of ceasing to act.
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On 10 August 2017, that third firm of solicitors filed Notices of Ceasing to Act. Discussions between the parties, over a period between mid-August and mid-September 2017, continued informally in an endeavour to settle the matter.
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Mr Row sought, on 19 October 2017, to have these matters relisted before me. On that occasion, I indicated to Mr Row, there being no appearance on behalf of the Applicant in any of the matters, that I considered that it was now appropriate to take steps to have the matters dismissed pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005, that being the provision that permits dismissal of proceedings for want of due despatch.
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A Notice of Motion was filed dealing with each of these matters, seeking that they be dismissed for want of prosecution by the Applicant and seeking costs to be ordered in each of the proceedings in favour of the Valuer General.
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In addition to the affidavit of Mr Row, to which I have earlier referred, I have two further affidavits of Mr Row dealing with the further process in the matter. The first of them came before me on 17 November 2017 when the Notices of Motion for summary dismissal had been made returnable.
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I am satisfied that the Notices of Motion in each of the matters, together with all relevant documents, were served appropriately on the Applicant in each of the six proceedings.
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On that occasion, I indicated to Mr Nash, counsel then appearing for the Valuer General, that I considered (as a consequence of an inadvertent slip in a communication with the companies) that prudence dictated - given the steps I was contemplating taking - that the matters go over until today, with a further communication being provided to each Applicant, drawing their attention to:
the terms of the relevant Notice of Motion;
the fact that it was to be dealt with today; and
the likely consequences of me doing so.
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The further affidavit of Mr Row of 22 November 2017 satisfies me that all of those steps have been taken and that the Applicant in each matter therefore has had adequate and complete notice of what is to be dealt with this afternoon.
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When the motion came before me again at four o’clock this afternoon, there was no appearance for the Applicant in any one of the six proceedings. I had each of the six proceedings called outside the courtroom and there was no response to that call.
Orders
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I am, therefore, satisfied that the following orders should be made.
In matter 186765 of 2016:
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The proceedings are dismissed pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005; and
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The Applicant is ordered to pay the Respondent’s costs as agreed or assessed.
In matter 183400 of 2016:
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The proceedings are dismissed pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005; and
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The Applicant is ordered to pay the Respondent’s costs as agreed or assessed.
In matter 183361 of 2016:
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The proceedings are dismissed pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005; and
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The Applicant is ordered to pay the Respondent’s costs as agreed or assessed.
In matter 183371 of 2016:
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The proceedings are dismissed pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005; and
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The Applicant is ordered to pay the Respondent’s costs as agreed or assessed.
In matter 183362 of 2016:
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The proceedings are dismissed pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005; and
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The Applicant is ordered to pay the Respondent’s costs as agreed or assessed.
Finally, in matter 183340 of 2016:
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The proceedings are dismissed pursuant to Pt 12 r 7 of the Uniform Civil Procedure Rules 2005; and
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The Applicant is ordered to pay the Respondent’s costs as agreed or assessed.
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Decision last updated: 05 December 2017
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