Bakri v Eley
[2001] WASC 250
BAKRI -v- ELEY & ANOR [2001] WASC 250
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 250 | |
| Case No: | CIV:2435/2000 | 5 SEPTEMBER 2001 | |
| Coram: | MASTER BREDMEYER | 11/09/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ABDUL AZIZ BAKRI DAVID ELEY ELEY PALMER ARCHER |
Catchwords: | Practice Springing order Whether springing order sprung Consolidation of actions |
Legislation: | Nil |
Case References: | Nil "Aura" Herbert D Stolle GMBH & Ors v Turbo Chairs International Pty Ltd [1999] WASC 260 Skahill & Anor v Kestral Holdings Pty Ltd (In Liq) & Ors [2000] WASC 32 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DAVID ELEY
First Defendant
ELEY PALMER ARCHER
Second Defendant
Catchwords:
Practice - Springing order - Whether springing order sprung - Consolidation of actions
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr A C Thorpe
First Defendant : Mr D Eley
Second Defendant : Mr D Eley
Solicitors:
Plaintiff : A C Thorpe
First Defendant : Eley Palmer Archer
Second Defendant : Eley Palmer Archer
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
"Aura" Herbert D Stolle GMBH & Ors v Turbo Chairs International Pty Ltd [1999] WASC 260
Skahill & Anor v Kestral Holdings Pty Ltd (In Liq) & Ors [2000] WASC 32
(Page 3)
1 MASTER BREDMEYER: This is a dispute over a springing order. The plaintiff says the springing order has been complied with. The defendants say the springing order has not been complied with, that it has sprung and that they are entitled to judgment.
2 On 14 February 2001 Case Management Registrar Rimmer made three orders, the first of which is:
"1. Unless within 7 days of the date of service of this order upon him the plaintiff files and serves an application to consolidate this action with action CIV 2130/00 or file and serve a statement of claim, the writ be struck out and the action be dismissed with judgment entered for the first and second defendants with costs."
3 The order was obtained ex parte. The order was served, but not complied with by the plaintiff, within the seven day period.
4 On 9 March 2001 Mr Thorpe, for the plaintiff, filed an application to a Case Management Registrar that this action be consolidated with CIV 2130 of 2000 "on the grounds set out in the affidavit of Andrew Cecil Thorpe filed herein". There was no similar application filed at that time in CIV 2130 of 2000. As I have said, the application was filed on 9 March. It was not served on the defendants until 3 May. The copy affidavit served was not a photostat copy. It did not show the signatures.
5 The plaintiff's solicitor, on 22 March, filed a chamber summons for extension of time for compliance with the orders of Registrar Rimmer of 14 February 2001. That application came on for hearing before Master Sanderson on 10 May 2001 and he ordered, as follows:
"1. The time for compliance with the orders of Registrar Rimmer of 14 February 2001 be extended to 17 May 2001.
2. The requirement for compliance with O 59 r 9 be dispensed with.
3. The costs of this application including reserved costs and the costs thrown away consequent upon the setting aside of judgment and of 29 March 2001 be taxed and paid forthwith by the plaintiff to the defendant.
4. The judgment entered 29 March 2001 be set aside."
(Page 4)
6 Master Sanderson gave extempore reasons which were recorded by the transcription service and his concluding paragraphs are as follows:
"Having said that, and with great respect to the plaintiff's solicitor, I think it must be made plain that the conduct of the litigation in both of these applications fall far short of what the court and the defendant is entitled to expect. While I am prepared to extend the time for compliance with the orders in both cases, I will do so on terms with respect to costs and I also make the point that the future conduct of these actions must comply with the rules and with the orders of the Case Management Registrar.
A copy of these reasons will be placed on the file and no doubt in the future if there is a failure to comply by the plaintiff with orders made by the court, the indulgence offered will be tempered by what has occurred in relation to these case management directions and what has flowed therefrom. In the circumstances then I will grant the extension of time and I will hear counsel as to the precise form of the order and as to costs."
7 The form of order 1 which was granted - the time for the compliance with the orders of Registrar Rimmer of 14 February 2001, be extended to 17 May 2001 - clearly intended that the plaintiff take a further step in the proceedings between 10 May and 17 May. On 17 May Mr Thorpe, for the plaintiff in CIV 2130/2000 filed an application for the consolidation of that action with CIV 2435/2000. That application came before the Case Management Registrar on 27 June and was adjourned for hearing before a Master. The application is presently before me. The application was served on the defendants' solicitor on 21 May. The copy served did not show a return date and was without any supporting affidavit.
8 The defendants argue that the springing order of Registrar Rimmer of 14 February 2001, as extended by Master Sanderson on 10 May 2001, has not been complied with and that default judgment should be entered for the plaintiff in this action 2435 of 2000. He says that for the consolidation of two actions, an application must be brought in each action. That is stated in Seaman at 83.1.3. He argued that before Master Sanderson in written submissions on 10 May. I think that submission is right. Although Master Sanderson did not say anything about a second application in CIV 2130, I consider that is implied in his judgment. As previously stated, I consider his order - the time for compliance with the orders of Registrar Rimmer of 14 February 2001 be extended to 17 May
(Page 5)
- 2001 - implied that the plaintiff take a further step to comply with the original order. That further step was the bringing of a similar application for consolidation in CIV 2130. Mr Thorpe argued that it was not necessary for him to take any further step in the proceedings and that he only obtained the extension to 17 May in order that he consider whether any further step need be taken. Having considered that, he decided no further step need be taken and that his consolidation application of 9 March in CIV 2435, which was served on the defendants' solicitor on 3 May, was adequate compliance.
9 I do not agree with that submission. I consider the order of Master Sanderson of 10 May required the plaintiff to file and serve on the defendants' solicitor an application for consolidation, probably in both actions, but most certainly in CIV 2130. This was not done. The application for consolidation in CIV 2130 was filed by 17 May but not served by then. In the light of the warnings given by Master Sanderson, I do not propose to grant any indulgence to the plaintiff in this regard. I propose to dismiss the application currently before me in CIV 2130 for consolidation with costs. I consider that default judgment should be entered for the defendants in CIV 2435. I will order the plaintiff to pay the defendants' costs of the action including any reserved costs to be taxed if not agreed.
10 I note that the plaintiff is not out of time to sue the defendants. If he wishes to join Eley Palmer Archer and/or Mr Eley in CIV 2130, he can apply for leave to join them and to amend the statement of claim in that action.
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