Boddan v Golden Edge Homes (NSW) Pty Limited

[2010] NSWDC 141

CITATION:	Boddan v Golden Edge Homes (NSW) Pty Limited [2010] NSWDC 141
HEARING DATE(S):	17 May 2010
JUDGMENT DATE:	17 May 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) The plaintiffs are to serve any further evidence upon which they propose to rely by 4pm on 18 June 2010. 2) The plaintiffs are to file and serve by 4pm on 18 June 2010 a certificate in writing from their solicitor to the effect that they have served all evidence on which they rely. 3) The defendant is to serve the evidence upon which it proposes to rely by 4pm on 16 July 2010. 4) The plaintiffs are to serve any evidence in reply by 4pm on 30 July 2010. 5) The proceedings are listed for hearing in the sittings commencing on 9 August 2010. 6) Failure by the plaintiffs to comply with any of orders 1, 2 or 4 will result in the dismissal of the proceedings without further order of the Court. If such circumstances arise, the plaintiffs are to pay the defendant’s costs of the proceedings. The defendant is at liberty to apply in the event they wish to press for costs on an indemnity basis. 7) The plaintiffs’ are to pay the defendant’s costs of the motion within fourteen days of agreement or assessment. 8) The affidavit evidence filed by the defendant in support of the application is returned.
CATCHWORDS:	DISMISSAL OF A CLAIM - Continued delay and disobedience of court orders - Claims arising out of circumstances that occurred many years ago - Prejudice through delay in proceedings
LEGISLATION CITED:	Civil Procedure Act 2005
CASES CITED:	Hoser v Hartcher [1999] NSWSC 527
PARTIES:	Robert Boddan (Plaintiff/Applicant) Zelma Janet Boddan (Plaintiff/Applicant) Golden Edge Homes (NSW) Pty Limited (Defendant/Respondent)
FILE NUMBER(S):	2009/00339181
COUNSEL:	Mr C Simpson (For the Plaintiffs/Applicants) Mr G Bassett (For the Defendant/Respondent)
SOLICITORS:	Darnell & Associates (For the Plaintiffs/Applicants) Mills Oakley Lawyers (For the Defendant/Respondent)

JUDGMENT

1 The plaintiffs’ claims in this matter arise out of a contract that they entered into with the defendant for the construction of a dwelling. The contract was dated 28 July 2001. It was varied in October 2001.

2 There was a dispute about the date of practical completion but this occurred some time in early 2002.

3 It was apparent therefore that construction work was undertaken in the second half of 2001 almost nine years ago.

4 The proceedings were commenced on 9 February 2009 based upon an alleged breach of statutory warranty. They were amended in July 2009 to add a claim in tort.

5 It is alleged by the defendant that both causes of action are statute barred. This allegation is denied by the plaintiffs.

6 The defendant asked the Court to dismiss the plaintiffs’ claim because of their multiple failures to comply with orders of the Court, those orders having been made for the purpose of preparing the claim for hearing with speed and efficiency.

7 The consequence to the plaintiffs of such an order will be that there will be no doubt that their claims would be statute barred. The consequence to the defendant of continued delay and disobedience of Court orders by the plaintiffs will be that it will become increasingly difficult for the defendant to deal with claims arising out of circumstances that occurred so many years ago.

8 I was reminded by the defendant of the new approach to efficient case management embodied in the Civil Procedure Act 2005 and applied in a number of Court of Appeal and Supreme Court decisions drawn to my attention.

9 In particular I was referred to the decision of Simpson J in Hoser v Hartcher [1999] NSWSC 527, where she referred to a number of factors to be considered when dealing with an application for dismissal of a claim. The Court of Appeal has subsequently confirmed that those factors remain current and are to be applied, having regard to the new regime.

10 I propose to apply those factors to this application.

11 The circumstances out of which the application arose were that the plaintiffs, already commencing proceedings on one view out of time and on another at the very end of the limitation period, failed to comply with directions made by the Court on 13 May 2009, 9 September 2009, 30 October 2009 and 9 February 2010. The complaint relates, in particular, to repeated failure by the plaintiffs to serve the evidence upon which they propose to rely. The last order made to this effect required that the evidence be served by 31 March 2010 and no further evidence has been served. Letters from the defendant’s solicitors concerning this non-compliance have not been answered with the result that this application was brought.

12 In considering these circumstances against the factors for consideration, I note:

1) No affidavit evidence has been provided by the plaintiffs explaining their non-compliance. I was told that valuation evidence is to be served but that it has not yet been obtained. There has been no communication with the defendant’s solicitor, notwithstanding attempts made to ascertain the plaintiffs’ intentions.

2) The defendant has actively attempted to keep the matter on track in order to progress to hearing in a timely fashion, thus, no criticism can be directed at the defendant.

3) As already noted, the proceedings were commenced at best at the very limits of the limitation period. The explanation offered by counsel for the delay in commencing the proceedings, was that the plaintiffs attempted to mitigate their loss by seeking resolution through other means.

4) I was not, in this application, in a position to consider the prospects of success on the part of the plaintiffs. I note the proposition put by the defendant suggesting that they have some difficulties.

5) I have already noted the prejudice to the defendant of continued delay in bringing to trial an action based on events occurring nearly nine years ago.

13 Ordinarily, I would have no hesitation in dismissing a claim in the circumstances that I have set out. However, the plaintiffs have incurred expense in obtaining and serving a number of expert reports to date, and if the current proceedings are dismissed, they will be denied any opportunity to pursue their claims.

14 Therefore, I have decided that they should be allowed one further opportunity to complete their evidence. If they fail to comply, the claim will be dismissed.

15 I was asked to reserve on the question of costs of this application. I do not think that it is appropriate that I do so. It was clearly necessary and appropriate that the defendant bring this application.

16 The orders that I make are as follows:

1) The plaintiffs are to serve any further evidence upon which they propose to rely by 4pm on 18 June 2010.

2) The plaintiffs are to file and serve by 4pm on 18 June 2010 a certificate in writing from their solicitor to the effect that they have served all evidence on which they rely.

3) The defendant is to serve the evidence upon which it proposes to rely by 4pm on 16 July 2010.

4) The plaintiffs are to serve any evidence in reply by 4pm on 30 July 2010.

5) The proceedings are listed for hearing in the sittings commencing on 9 August 2010.

6) Failure by the plaintiffs to comply with any of orders 1, 2 or 4 will result in the dismissal of the proceedings without further order of the Court. If such circumstances arise, the plaintiffs are to pay the defendant’s costs of the proceedings. The defendant is at liberty to apply in the event they wish to press for costs on an indemnity basis.

7) The plaintiffs’ are to pay the defendant’s costs of the motion within fourteen days of agreement or assessment.

8) The affidavit evidence filed by the defendant in support of the application is returned.

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