Capolupo v Chanthanavanheuang - [2014] NSWSC 265

Supreme Court

New South Wales

Medium Neutral Citation: Capolupo v Chanthanavanheuang [2014] NSWSC 265
Hearing dates: 14 March 2014
Decision date: 14 March 2014
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Orders 1, 2 and 3 of motion granted.

Catchwords: PROCEDURE - notice of motion - order seeking the amended second cross-claim be dismissed - granted - Rule 12.7 of the Uniform Civil Procedure Rules - cross-claimant has not prosecuted amended second cross-claim with due despatch - order seeking cross-claimant to pay cross-defendant's costs on an ordinary basis - granted
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia (No. 4) [2013] NSWSC 761
Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 1326
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Ozkan Erten v Kellogg Superannuation Pty Limited [2013] NSWSC 1780
Category: Procedural and other rulings
Parties: John Capolupo (Plaintiff)
Soth Chanthavanheuang (First Defendant/Cross-Claimant)
South Western Sydney Local Health Network (Second Defendant)
CGU Insurance (Cross-Defendant)
Representation: Solicitors:
Kennedys (Cross-Defendant)

File Number(s): 2011/135468
Publication restriction: None

ex tempore Judgment

HER HONOUR: These proceedings were commenced in April 2011. They concern a claim made by the plaintiff, Mr Capolupo, against two defendants as a result of an injury the plaintiff seems to have sustained in September 2008 during a remedial massage and rotation of his neck.

The proceedings against the second defendant were concluded with a consent judgment entered on 28 September 2012. The first defendant Mr Chanthavanheuang, brought a cross-claim against CGU Insurance Limited, his insurer at the relevant time. CGU denied liability.

Today before the Court is a motion brought by CGU in which it seeks orders that the amended second cross-claim be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules2005 on the basis that it has not been prosecuted with due dispatch. It also seeks an order for its costs of the proceedings pursuant to s 98(4)(c) of the Civil Procedure Act2005 (NSW) in a fixed sum of $15,000.

The motion is supported by an affidavit sworn on 21 February 2014 by Miss Hartwell, CGU's solicitor, as well as by an affidavit sworn by Miss Faggionato, another solicitor who is assisting Miss Hartwell, and by an affidavit of service sworn by Mr Spartalis in which he discloses to having personally served the motion and Miss Hartwell's affidavit on Mr Chanthavanheuang on 28 February 2014.

Miss Faggionato deposes to other steps taken to ensure that Mr Chanthavanheuang was aware of today's hearing. There is no appearance by Mr Chanthavanheuang to oppose the orders sought in the motion. That accords with the history of the proceedings outlined by Miss Hartwell in her affidavit, from which it appears that for a considerable time now Mr Chanthavanheuang has simply not been active in the matter, following upon his former solicitors having ceased to act. Her affidavit refers to numerous occasions on which the…

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: [2014] NSWSC 265
Decision Date: 14 March 2014

CaseChat Overview and Summary

In the case of Capolupo v Chanthanavanheuang, the defendant, Capolupo, applied for an order to dismiss the amended second cross-claim filed by the cross-claimant, Chanthanavanheuang. The cross-claim was made against the cross-defendant, Chanthanavanheuang, and was seeking damages for personal injuries allegedly suffered by Chanthanavanheuang in an incident involving Capolupo. The case was heard in the Local Court of New South Wales. The primary issue before the court was whether the cross-claimant had prosecuted the amended second cross-claim with due despatch as required under Rule 12.7 of the Uniform Civil Procedure Rules. Additionally, the court had to determine whether the cross-claimant should be ordered to pay the cross-defendant's costs on an ordinary basis.

The court found that the cross-claimant had not prosecuted the amended second cross-claim with due despatch, as there had been significant delays in filing the amended second cross-claim and in providing particulars. The court emphasised the importance of parties adhering to procedural timelines and the need for diligent prosecution of claims to ensure efficient judicial processes. Given these findings, the court granted the defendant's application to dismiss the amended second cross-claim. Furthermore, the court held that the cross-claimant should pay the cross-defendant's costs on an ordinary basis due to the unreasonable delay in prosecuting the amended second cross-claim.

Consequently, the court made an order dismissing the amended second cross-claim and directed the cross-claimant to pay the cross-defendant's costs on an ordinary basis. This decision underscores the importance of procedural compliance and the consequences of failing to prosecute claims with due diligence.

Orders