De Hayr v Chauvier

[2006] NSWSC 683

CITATION:	De Hayr v Chauvier [2006] NSWSC 683 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 June 2006
JUDGMENT DATE :	27 June 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	06/27/2006
DECISION:	Further time for filing affidavits granted, on the basis that no further evidence be filed after that date without a specific order of a Judge
CATCHWORDS:	PROCEDURE - repeated non-compliance with directions
CASES CITED:	Re XYZ, Solicitor [2005] NSWSC 72
PARTIES:	Neville Edward De Hayr - First Plaintiff Kaylene June Toovey - Second Plaintiff Eric James Chauvier - First Defendant Elaine Chauvier - Second Defendant
FILE NUMBER(S):	SC 5969/05
COUNSEL:	S Chrysanthou - Plaintiffs S Philips - Defendants
SOLICITORS:	Ellis & Baxter - Plaintiffs Unrepresented - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

TUESDAY 27 JUNE 2006

5969/05 NEVILLE EDWARD DE HAYR & ANOR v ERIC JAMES CHAUVIER & ANOR

JUDGMENT – Ex Tempore

1 HIS HONOUR: This matter has been shockingly delayed. The proceedings began with urgency before the Chief Judge on 23 November 2005 when proceedings were filed in court and an order for short service was given. On the return date, 25 November 2005, a caveat was extended until further order by consent. By that time the plaintiffs’ evidence in chief was all on. The defendants’ evidence was all on by 10 February 2006. On that day directions were given for the plaintiffs to file evidence in reply by 17 March 2006. That did not happen. On 24 March 2006 the plaintiffs were directed to file evidence in reply by 10 April 2006. That did not happen. On 13 April 2006 the plaintiffs were directed to file evidence in reply by 21 April 2006 and expert evidence in reply by 24 May 2006. That did not happen either. On 25 May 2006 the plaintiffs were directed to file lay evidence in reply by 21 June 2006 and expert evidence in reply by 21 June 2006. That did not happen either.

2 This is a disgraceful series of delays. The court endeavours hard to assist people in business to have their disputes resolved by providing procedures which aim to achieve a just, quick and cheap resolution of those disputes. Repeated disobedience of the Court’s directions frustrates that process.

3 The latest delay has been occasioned by the fact that an engineer engaged to provide the expert evidence in reply has become ill and has been hospitalised. That expert has already prepared a draft report. Quite when he will be ready to finalise it is at present not certain.

4 The plaintiffs have, realistically, come to the decision that, if that expert does not get himself in a position where the report can be served within the next week, they will qualify another expert. They seek a month in which to serve the remaining affidavits.

5 The dispute relates to a contract for the sale of development land. That is a topic concerning which it is usually most important that expeditious resolution of disputes occur. In the present case, however, Mr Philips informs me that the defendants cannot point to any particular prejudice they have suffered by reason of the delays, other than the inevitable costs associated with them.

6 I am informed by Miss Chrysanthou that both her leader, and the engineer who was briefed, have not given as much attention to this matter as they might. That is extremely regrettable. As Re XYZ, Solicitor [2005] NSWSC 72 illustrates, failure of a legal practitioner to comply with court directions, in circumstances where the legal practitioner is at fault, can lead the court to consider initiating action of a disciplinary nature. Practitioners in this court need to proceed on the basis that court directions are to be obeyed.

7 Largely because of the defendants not suffering any prejudice, which is not remediable by costs, I shall grant Miss Chrysanthou’s application for a further month in which to file evidence.

8 I order the plaintiffs to file and serve all evidence on which they seek to rely by close of business Thursday 27 July 2006. I direct that, if the expert presently briefed is in a position to finalise his report prior to that date, it be filed and served as soon as finalised.

9 Mr Philips, for the defendants, seeks an order for the costs of two wasted directions hearings on 13 April 2006 and 25 June 2006. Rightly, Miss Chrysanthou has nothing to say in opposition to that application.

10 In addition to the earlier direction, I direct that the plaintiffs file no further evidence after 27 July 2006 without a specific order of a judge.

11 I order the plaintiffs to pay the costs of the defendants of today’s hearing, and of the directions hearings on 13 April 2006 and 25 June 2006. In ordering the plaintiffs to pay those costs I say nothing about where, as between the plaintiffs and their legal advisers, those costs should fall.

12 I stand the proceedings over before the registrar on Monday 31 July 2006.

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06/07/2006 - Date of judgment on coversheet altered from July to June. - Paragraph(s) Coversheet