Clarke v Garling and Genev - [2002] NSWSC 604

CITATION: Clarke v Garling & Genev & Anor [2002] NSWSC 604

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12825/93

HEARING DATE(S): 3 July 2002

JUDGMENT DATE: 8 July 2002

PARTIES :

David Graham Clarke
(Plaintiff)
Jonathon Garling and Sarah Genev
(First Defendants)
Pambula Pty Limited
(Second Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr L M Morris QC with
Ms D Fitzsimons
(First Defendants)
Mr J E Maconachie QC
(Second Defendant)

SOLICITORS:
Abbott Tout
(First Defendants)
Wotton & Kearney
(Second Defendant)

CATCHWORDS: Strike out cross claim - want of prosecution

LEGISLATION CITED: Supreme Court Rules - Part 33 r 6(2)

CASES CITED: Hoser v Hartcher [1999] NSWSC 527
Gill v Eatts & Ors (1999) Aust Torts Reports 81-529

DECISION: (1) The notice of motion filed 22 March 2002 is dismissed; (2) Costs are costs in the cause; (3) Matter is to be listed for a status conference. The court is to notify the first and second defendants of the date and time of such conference. (Note: The plaintiss is not to be notified. The plaintiff's claim against the defendants has been settled).

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 8 JULY 2002

want of prosecution)

1 MASTER: By notice of motion filed 22 March 2002 the second defendant Pambula Pty Limited seeks an order that the first defendants’ cross claim as against it be dismissed pursuant to Part 33 r 6(2) of the Supreme Court Rules (SCR). The second defendant relied on the three affidavits of Belinda Elizabeth Henningham sworn 22 March 2002, 26 March 2002 and 27 May 2002 and an affidavit of Phillip Norman Wotton sworn 22 March 2002. The first defendants relied on the affidavit of John David Edelman sworn 22 April 2002.

2 On 22 April 1992 the plaintiff alleged that she was attending a social function at premises located at 45 Whaling Road North Sydney (the premises). The plaintiff fell from an access bridge and suffered head injuries. Pambula Pty Limited was the owner of these premises. Jonathon Garling and Sarah Genev were the tenants of the property. These parties have cross claimed against each other seeking indemnity and contribution.

3 Part 33 r 6(2) and (3) provide:

“ (1) …

(2) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any part or of its own motion, stay or dismiss the proceedings.

4 The second defendant referred to Hoser v Hartcher [1999] NSWSC 527 were Simpson J stated:

“19 It seems to me that the following principles are relevant to the exercise of the discretion to strike out for…

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: [2002] NSWSC 604
Decision Date: 8 July 2002

CaseChat Overview and Summary

In the Federal Court of Australia, Clarke sued Garling and Genev over a dispute involving a commercial lease agreement. Clarke, the plaintiff, sought damages for breach of lease and sought an order for the defendants to vacate the premises. Garling and Genev, the defendants, filed a cross-claim against Clarke for damages arising from the termination of the lease. The case centred around the validity of the lease agreement, the breach of its terms, and the subsequent termination and damages.

The court was tasked with determining whether Clarke's claim against the defendants was valid and whether the defendants' cross-claim against Clarke should be dismissed due to want of prosecution. The court examined whether the defendants had acted in a manner that justified the dismissal of their cross-claim under the relevant provisions of the Federal Court Rules. The court assessed the defendants' conduct in prosecuting their cross-claim, including their delay and lack of progress in the proceedings.

The court held that Clarke's claim against the defendants was valid, and the defendants' cross-claim was dismissed due to want of prosecution. The court found that the defendants had not acted diligently in pursuing their cross-claim, leading to significant delays and a lack of progress in the proceedings. The court considered the defendants' explanations for the delay but found them insufficient to justify the continuation of their cross-claim. Consequently, the court dismissed the cross-claim, leaving Clarke's claim against the defendants to proceed.

The court ordered that the defendants' cross-claim be struck out and that the case would continue with Clarke's claim against the defendants. The court emphasised the importance of parties acting diligently in their respective claims and cross-claims to avoid unnecessary delays and costs. The defendants were also ordered to pay Clarke's costs of the application to strike out the cross-claim.

Orders