Chaina v The Presbyterian Church (NSW) Property Trust

The appeal in *Chaina v The Presbyterian Church (NSW) Property Trust* concerned an application by the respondent to dismiss the appeal for want of prosecution. The appellants had failed to settle the grounds of appeal and file written submissions, and had not complied with the times required by the rules or directions of the court. The respondent argued that there was no real prospect of compliance in the foreseeable future and that it had suffered prejudice.

The primary legal issue before the court was whether the appeal should be dismissed due to the appellants' persistent failure to comply with procedural requirements and court directions. A secondary issue, arising in the context of the application to dismiss, was whether the impecuniosity of the appellants and the likely effect of further delay on the final disposal of proceedings made dismissal the preferable course, particularly in relation to the respondent's application for security for costs.

Basten JA found that the appellants had demonstrated a consistent pattern of non-compliance with court rules and directions, and that there was no realistic prospect of them complying with future directions. The court considered the prejudice to the respondent, noting that while the appellants argued they would suffer substantial prejudice if the appeal were dismissed, the respondent had already incurred significant costs and faced ongoing uncertainty due to the delay. The court concluded that the appellants' conduct warranted dismissal of the appeal.

Consequently, the court ordered that the appeal be dismissed and that the appellants pay the respondent’s costs of the respondent’s notices of motion filed on 1 December 2014 and 15 April 2016.