Di Gregorio v Lumi Finance Pty Ltd

[2022] NSWSC 1323

Supreme Court

New South Wales

Medium Neutral Citation:

Di Gregorio v Lumi Finance Pty Ltd [2022] NSWSC 1323

Hearing dates:

29 September 2022

Date of orders:

29 September 2022

Decision date:

29 September 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Extend time provided for in order 4 of the Registrar’s Orders made on 6 July 2022 to 5 October 2022.

2. Extend time provided for in order 5 of the Registrar’s Orders made on 6 July 2022 to 10 October 2022.

3. Stood over for Directions before the Registrar at 9:00am on 6 October 2022.

4. Plaintiffs to pay the defendant’s costs associated with the hearing on 29 September 2022 on an indemnity basis.

Catchwords:

CIVIL PROCEDURE – adjournment – to vacate hearing date – where plaintiffs were granted leave to file notice of motion to vacate hearing date – motion listed before duty judge – no motion filed – plaintiffs failed to appear – hearing date confirmed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 4.15

Cases Cited:

Kuksal v Lumi Finance Pty Limited [2021] NSWSC 1430

Maria Di Gregorio and anor v Magistrate Susan McIntyre and Ors [2022] NSWSC 850

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Maria Di Gregorio (First Plaintiff)
Shivesh Kuksal (Second Plaintiff)
Lumi Finance Pty Ltd (Defendant)

Representation:

Counsel:
No appearances (Plaintiffs)
P Afshar (Defendant)

Solicitors:
Erudite Legal (Plaintiffs)
Legal Vision (Defendant)

File Number(s):

2022/32884

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 4 February 2022 by the plaintiffs who then had lawyers acting for them. The proceedings in this Court arose out of proceedings in the Local Court where the present defendant, Lumi Finance Pty Limited (“Lumi Finance”), had filed a statement of claim in the Local Court naming as defendants the plaintiffs in this Court. Default judgment was obtained against the present second plaintiff, and the second plaintiff was unsuccessful in having that judgment set aside.

2. Proceedings were then commenced in this Court by the second plaintiff to challenge what had occurred in the Local Court, but those proceedings were dismissed as incompetent by Associate Justice Harrison on 5 November 2021: Kuksal v Lumi Finance Pty Limited [2021] NSWSC 1430.

3. The summons filed in these proceedings named as defendants the magistrate who had declined to set aside the default judgment, Associate Justice Harrison and Lumi Finance. The Magistrate and Associate Justice Harrison were removed from the proceedings by orders made on 6 September 2022. The only remaining defendant is Lumi Finance.

4. The only relevant prayer for relief in the summons is prayer 5 which seeks a declaration that the Statement of Claim lodged by Lumi Finance on 14 November 2019 in the Local Court was incompetent. A costs order is also sought.

5. On 6 May 2022 the plaintiffs purported to file an amended summons adding a large number of defendants and making additional claims. The summons was not signed by the solicitor or by the plaintiffs in the matter. It is not clear whether that document, which was E-filed, was directed to be removed from the Court file but it ought to have been in the circumstances of not being signed: r 4.15 Uniform Civil Procedure Rules 2005 (NSW).

6. Thereafter, the plaintiffs sought to amend their summons in the form that they had purportedly filed on 6 May 2022. They were given various deadlines by the Registrar to do so but an amended summons was never properly filed.

7. The Registrar then directed that if the plaintiffs wished to file an amended summons they would need to file a Notice of Motion seeking leave to do so. A Notice of Motion was filed on 24 May 2022. Thereafter, directions were made by the Registrar on 27 May 2022 for evidence and submissions in support of that motion to be filed by the plaintiffs by 10 June 2022. Those directions were not complied with.

8. On 21 June 2022 the Registrar made further directions that the plaintiffs were to file and serve evidence and submissions by 4.00pm on 22 June 2022, failing which the Notice of Motion would stand dismissed.

9. Shortly before 4.00pm on 22 June 2022 the plaintiffs made an urgent application to Bellew J, the duty judge, to extend time for compliance with the Registrar’s orders. After hearing argument, Bellew J made orders on 23 June 2022 for the plaintiffs to file their evidence and submissions by 4 July 2022, failing which their motion to amend their summons would stand dismissed: Maria Di Gregorio and anor v Magistrate Susan McIntyre and Ors [2022] NSWSC 850.

10. The plaintiffs did not comply with the directions made by Bellew J.

11. The matter came back before the Registrar on 6 July 2022. The parties and the Registrar appear to have worked on the basis that the Notice of Motion stood dismissed by virtue of Bellew J's executing order. The Registrar made a number of orders for costs in relation to the Notice of Motion. The Registrar fixed the matter for hearing on 12 October and directed that the plaintiffs were to file and serve their evidence in support of the summons by 31 July 2022 and to file and serve written submissions by 9 September 2022.

12. The plaintiffs did not comply with the directions made, and no submissions in support of their claim at the final hearing have been filed or served.

13. On 20 September 2022 at a directions hearing before the Registrar the plaintiffs indicated that they wished to file a Notice of Motion to vacate the hearing on 12 October. The Registrar directed that the plaintiffs were to file and serve any such Notice of Motion and supporting affidavit in relation to the application to vacate the hearing by 26 September 2022. The Registrar fixed the hearing of that Notice of Motion before the duty judge today.

14. No Notice of Motion was filed. My Associate received an email from the second plaintiff on 27 September to say that the plaintiffs were having difficulty accessing the Court’s online filing system. On 27 September 2022 my tipstaff, at my direction, telephoned the plaintiffs' solicitors but the call went to voicemail. She then, at my direction, forwarded an email to the solicitors and the plaintiffs directing that copies of the Notice of Motion and supporting affidavit be provided to me forthwith. The email by my tipstaff was not responded to and no Notice of Motion or affidavit has been filed or served on Lumi Finance.

15. At the hearing this morning there was no appearance from the plaintiffs. In those circumstances I confirm the final hearing of the matter on 12 October 2022.

16. Mr Afshar, of counsel for Lumi Finance, has indicated that one of the difficulties he, his solicitor and client have faced in relation to the final hearing is to understand what case is being made by the plaintiff in support of the prayer for relief in the summons that I have identified, in the absence of submissions on behalf of the plaintiff.

17. In those circumstances I consider that I should give the plaintiffs one last opportunity to file and serve submissions in support of their claim. I do not consider it appropriate to make a self-executing order that a failure to do so would mean that the proceedings stand dismissed, particularly as it has become apparent within the last month that the plaintiffs may now not be legally represented.

18. The position about legal representation is unclear because a manager was appointed to the practice of the plaintiffs' solicitors by the Victorina Legal Services Board on 22 August 2022. The manager who was appointed, Howard Rapke, a solicitor, then sought and was granted leave by the Registrar to cease to act for the plaintiffs in the proceedings. However, the plaintiffs themselves, appear to have some intimate involvement in the conduct of the solicitor's practice which was acting for them in the proceedings. The first plaintiff is, for example, described as a “Non-legal Director of People Shop Pty Ltd”. People Shop Pty Ltd trades as Erudite Legal, the solicitors who had been acting for the plaintiffs.

19. I consider that the best way to proceed is to extend time for the plaintiffs to file and serve their submissions to a date one week in advance of the hearing date. I will then stand the proceedings over before the Registrar on the following day to enable any further application that Lumi Finance wishes to make in the light of any failure by the plaintiffs to comply with the directions of the Court, and in the light of the difficulties the defendant is having in understanding the case the plaintiffs seek to make against it.

20. The orders I make are these:

1. I extend the time provided in order 4 of the Registrar's orders of 6 July 2022 to 5 October 2022.

2. I extend the time in order 5 of those orders to 10 October 2022.

3. I stand the proceedings over to 6 October 2022 before the Registrar to enable the defendant to make whatever application it is advised on that day.

21. In the light of the lengthy failures on the part of the plaintiffs to comply with directions of the Court and in the light of their having arranged for this matter to be listed today but then failing to file or serve the Notice of Motion they requested and to appear today, I consider that the appropriate costs order is that the plaintiffs pay the defendant's costs associated with today's hearing on an indemnity basis.

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Decision last updated: 30 September 2022