Baiada Poultry Pty Ltd v Jones - [2018] NSWSC 915

Supreme Court

New South Wales

Medium Neutral Citation: Baiada Poultry Pty Ltd v Jones [2018] NSWSC 915
Hearing dates: 15 June 2018
Decision date: 15 June 2018
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The defence filed 26 October 2017 is struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.7(2).

(2) The defendant is to pay the plaintiff's costs of today’s hearing on the ordinary basis.
(3) The plaintiff is granted liberty to apply to the Court for default judgment on three days' notice.
Catchwords: CIVIL PROCEDURE – Pleading – Striking out – Where defendant failed to conduct defence with due despatch – Whether Court should exercise its discretion to strike out the defence in accordance with UCPR r 12.7(2)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56.
Uniform Civil Procedure Rules 2005 (NSW), r 12.7(2)
Cases Cited: Hoser v Hartcher [1999] NSWSC 527
State of New South Wales v Plaintiff A [2012] NSWCA 248
Category: Procedural and other rulings
Parties: Baiada Poultry Pty Ltd (Plaintiff)
Rhys Lloyd Jones (Defendant)
Representation:
Counsel:
P Cleary (Solicitor)(Plaintiff)
Solicitors:
Matthews Folbigg Lawyers (Plaintiff)

File Number(s): 2017/228785
Publication restriction: Nil

Judgment (revised from ex tempore)

By statement of claim filed on 27 July 2017, the plaintiff, Baiada Poultry Pty Ltd, seeks payment of the amount of $886,867.20 plus interest from the defendant Rhys Lloyd Jones. The plaintiff provided goods to a company, R&R Poultry Pty Ltd, on credit. That company is now in liquidation. The defendant, Mr Rhys Jones, guaranteed the loan of credit.
On 26 October 2017, a defence was filed on behalf of the defendant. His solicitor at that time was the firm Crowley Greenhalgh, which is a firm of solicitors in Queensland. The defence denied that the money was owed by the defendant. In brief terms, the scope and terms of the guarantee entered into, and whether it extended to the amount claimed, is disputed.
On 9 November 2017, a reply was filed. The matter was next listed for mention before Registrar Bradford on 7 February 2018. On that occasion there was an appearance on behalf of the plaintiff but no appearance on behalf of the defendant. A somewhat obscure Court notation on the file suggests, with some ambiguity, that the plaintiff may have mentioned the matter on behalf of the defendant on that occasion, although that is not entirely clear. In any event, on that day, by consent, the Registrar made orders, inter alia, that the defendant was to serve any evidence in respect of its defence on or before 14 March 2018. On 4 April 2018, the plaintiff wrote to the Registrar by way of email indicating that the defendant had not complied with that order. The matter was re-listed on 9 April 2018 and the parties were notified.
On 9 April 2018, the matter came before Registrar Bradford again for mention. There was no appearance on behalf of the defendant. His name was called three times, but there was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 915
Decision Date: 15 June 2018

CaseChat Overview and Summary

Baiada Poultry Pty Ltd brought an action against Jones seeking compensation for damages to poultry and eggs. Jones denied the allegations and filed a defence. Baiada Poultry then applied to have Jones's defence struck out, arguing that Jones had failed to conduct their defence with due despatch. The court had to determine whether the delay in filing the defence was sufficient to warrant the exercise of its discretion to strike it out under UCPR rule 12.7(2).

The court noted that the delay in filing the defence was significant, and that Jones had provided no satisfactory explanation for the delay. The court considered the factors set out in UCPR rule 12.7(2) and concluded that the delay had caused prejudice to Baiada Poultry. The court also considered the principle that parties should conduct their litigation with due despatch and that the court has a duty to ensure that the administration of justice is not impeded. The court found that the delay in filing the defence was sufficient to warrant the exercise of its discretion to strike it out.

The court exercised its discretion to strike out Jones's defence in accordance with UCPR rule 12.7(2). The court noted that this was a serious matter and that the consequences of striking out a defence are significant. However, the court found that the delay in filing the defence was unjustified and that the prejudice caused to Baiada Poultry outweighed any prejudice to Jones. The court ordered that Jones's defence be struck out and that the matter proceed to trial on Baiada Poultry's claim.

Orders