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)

1. 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.

2. 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.

3. 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.

4. 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 still no appearance. On that occasion the Registrar made orders, inter alia, that the defendant pay the costs of the plaintiff's attendance at that directions hearing and ordered that the defendant serve its evidence in respect of its defence no later than 5 pm on 13 April 2018.

5. On 9 May 2018, the matter came back before the Registrar again. There was no appearance by the defendant on that occasion, despite his name being called three times outside Court. The Registrar thus made orders, inter alia, that the defendant pay the costs of the plaintiff's attendance for that directions hearing and that the defendant serve any evidence in respect of his defence it seeks to rely upon by 5 pm on 23 May 2018. The Registrar also made an order that, in the event that the defendant failed to serve his evidence in respect of his defence by 5 pm on 23 May 2018, the defendant is not entitled to rely on any further evidence without the leave of the Court.

6. The proceedings were listed for further directions for the purpose of allocating a hearing date on 13 June 2018. On 13 June 2018, the matter was listed for a directions hearing before Registrar Bradford and again there was no appearance of the defendant. The plaintiff made an application on that day that the defence be struck out. The Registrar was of the view that he did not have power to do so and the matter was referred to the duty judge on 15 June 2018.

7. The matter has now come before me today in my capacity as duty judge. Although no notice of motion has been filed in this matter, it is to be accepted that the Registrar referred the matter for consideration as to whether the defence should be struck out under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 12.7(2). UCPR r 12.7(2) provides that:

"If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the Court thinks fit."

8. I have had regard to the delay in this matter. The Court record notes that there has been no appearance by the defendant on any occasion since February 2018. I have been provided with the affidavit of the plaintiff's solicitor and the attempts made to contact the defendant. There is no evidence before the Court of any attempt, on behalf of the defendant, to explain the delay nor seek any indulgence on the part of either the plaintiff or the Court. I have had regard to the relevant authorities in relation to striking out matters for want of due despatch. The decision of Hoser v Hartcher [1999] NSWSC 527 at [19] lists some of those relevant discretionary matters. They include questions of explanation offered as to the delay and whether any steps have been taken to secure progress of the matter, and ultimately confirms that the discretion should be exercised only in a clear case where it is manifestly warranted. Those principles should be read in the context of s 56 of the Civil Procedure Act 2005 (NSW). In the decision of the Court of Appeal in State of New South Wales v Plaintiff A [2012] NSWCA 248 (at [17]), the Court noted that, to some extent, the enactment of the Civil Procedure Act has diminished the stringency of the principle that a Court should be reluctant to exercise the power of summary dismissal absent intentional and contumelious default on the part of the plaintiff and the same principles also apply in relation to striking out for want of due despatch.

9. In circumstances where there has been no appearance by the defendant today and no explanation given for the lack of due despatch in this matter, it is inevitable that the plaintiff's application must succeed.

orders

10. Accordingly I make the following orders:

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.

**********

Decision last updated: 25 June 2018