Dawn Wade and Ruth Wade v Joyce Wade

[2017] NSWSC 1686

Supreme Court

New South Wales

Medium Neutral Citation:	Dawn Wade and Ruth Wade v Joyce Wade [2017] NSWSC 1686
Hearing dates:	14 November 2017
Decision date:	14 November 2017
Jurisdiction:	Equity
Before:	Emmett AJA
Decision:	1.   Order that the proceedings be dismissed. 2.   Order that the plaintiffs pay 85% of the defendant’s costs of the Notice of Motion filed on 27 October 2017. 3.   Order that the notice of motion be otherwise dismissed. 4.   Order that the plaintiffs pay the defendant’s costs of the proceedings on a party/party basis.
Catchwords:	PROCEDURE – Summary dismissal – Want of prosecution with due despatch
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 12.7
Category:	Principal judgment
Parties:	Dawn Florence Wade (First Plaintiff) Ruth Violet Wade (Second Plaintiff) Joyce Wade (Defendant)
Representation:	Counsel: Dawn Wade (Plaintiffs) Mark Gunning (Defendant)   Solicitors: Gordon Garling Moffitt, Lawyers (Defendant)
File Number(s):	2016/214800

EX TEMPORE Judgment

1. HIS HONOUR: These proceedings were fixed for hearing before me on 28, 29 and 30 August 2017. On 28 August 2017, on the application of the plaintiffs, who were not ready to proceed, I ordered that the hearing date be vacated. I ordered the plaintiffs to pay to the defendant the sum of $36,000 for costs thrown away by reason of the vacation of the hearing. I also ordered that the proceedings be stayed until such time as those costs had been paid in full to the defendant.

2. Several bases for relief have been advanced on behalf of the plaintiffs. One involved lack of mental capacity on the part of Ms Wade’s father at the time when he transferred land to the defendant. However, the legal personal representatives of the deceased father are not parties to the proceedings. There are also hints of breaches of trust and breaches of contract. In the course of the hearing on 28 August 2017, I indicated that I had considerable reservations about the proceedings and did not consider them to have great prospects of success. Ms Dawn Wade, one of the plaintiffs, who appeared with leave for her sister as well as for herself, acknowledged, in effect, that the current state of the pleadings did not represent the case that the plaintiffs wished to prosecute.

3. In those circumstances, I gave the defendant leave to file a notice of motion seeking summary dismissal of the proceedings for want of prosecution if the costs referred to above were not paid before 29 September 2017. The costs were not paid, either by that date or at all. The defendant has now filed a notice of motion, dated 24 October 2017, seeking dismissal of the proceedings.

4. The first prayer of the notice of motion is an order pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), or the Court’s inherent jurisdiction, that the proceedings be dismissed on the ground that the plaintiffs have not prosecuted the proceedings with due despatch. Alternative bases for summary dismissal were also claimed. Significantly, the motion also claimed an order that, subject to any other costs orders made in the proceedings thus far, the plaintiffs pay the defendant’s costs of the proceedings on an indemnity basis or, alternatively, on a party/party basis.

5. Having heard from counsel for the defendant on the motion, I invited Ms Dawn Wade to indicate her response. Ms Wade indicated that she did not oppose the summary dismissal of the proceedings or an order for costs on the ordinary basis. However, she opposed the making of an order for the costs of the motion. In the course of addressing the Court, Ms Wade also sought leave to discontinue the proceedings. She indicated that she was concerned that the dismissal may give rise to an issue estoppel or a res judicata. I indicated that it was not for the Court at this stage to indicate one way or the other whether the dismissal would have that consequence and that that would be a matter for another court if further proceedings are commenced in the future. Leave to discontinue the proceedings was opposed and I indicated that it was inappropriate to make such an order.

6. Ms Wade accepted that the plaintiffs had not indicated before this morning that they were prepared to consent to any of the orders sought in the motion. She asserted, which was not disputed, that she was not asked to consent. Be that as it may, she has put the defendant to the costs of filing the motion. Her justification for doing so is the claim in it for indemnity costs. I do not consider that any basis for indemnity costs has been made out. Nevertheless, I consider that it was appropriate to bring the motion, apart from the claim for indemnity costs.

7. Therefore, I propose to order that the proceedings be dismissed on the ground that the plaintiffs have not prosecuted the proceedings with due despatch. I will order that, subject to any other costs orders already made in the proceedings thus far, the plaintiffs pay the defendant’s costs of the proceedings on the party/party basis. I will order the plaintiffs to pay 85 per cent of the defendant’s costs of the notice of motion and that the notice of motion be otherwise dismissed.

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Decision last updated: 05 December 2017