Douglas & Anor v Madden & Ors - [2009] NSWSC 47

CITATION: Douglas & Anor v Madden & Ors [2009] NSWSC 47

HEARING DATE(S): 13 February 2009

JUDGMENT OF: Schmidt AJ

EX TEMPORE JUDGMENT DATE: 13 February 2009

DECISION: 1. If the plaintiffs do not serve the outstanding expert’s report and any supporting affidavits by 4 pm on 27 February 2009, the proceedings are dismissed with an order that the plaintiffs pay the defendants' costs, as agreed or assessed.
2. The plaintiffs pay the defendants' costs associated with the motion and its hearing, on an indemnity basis. Those costs are payable forthwith.

CATCHWORDS: SUMMARY DISMISSAL - application to dismiss proceedings for want of prosecution - protracted delay in putting on expert and other evidence - reported failure to comply with Court's orders - self executing order made - costs

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Fiduciary Ltd v Morningstar Research Pty Ltd [2007] NSWSC 432
Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274

PARTIES: Troy Douglas (formerly known as Douglas Pestano) - First Plaintiff
Morgan Price Limited - Second Plaintiff
Phillip MacDonald Madden & Julia Anne Madden t/as Maddens Commercial Lawyers and/or Maddens Business & Property Lawyers - First Defendant
Maddens Lawyers Business & Property Pty Limited - Second Defendant
Andrew Tennent Sutherland, John Richard Cox, Christopher Hugh McCaffery,Timothy John Eakin, Michael John Patrick White & Michael Leo Stafford t/as Eakin McCaffrey Cox - Third Defendant

FILE NUMBER(S): SC 20435/2005

COUNSEL: Mr L Gor - Plaintiffs
Mr I Griscti - First and Second Defendants
Mr T Blyth (Solicitor) - Third Defendant

SOLICITORS: Bryan Gorman & Co - Plaintiffs
HWL Ebsworth Lawyers - First and Second Defendants
Middletons - Third Defendant

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW LIST

SCHMIDT AJ

Friday, 13 February 2009

020435/05 TROY DOUGLAS (FORMERLY KNOWN AS DOUGLAS PESTANO) & ANOR -V- PHILLIP MACDONALD MADDEN & JULIA ANNE MADDEN t/as MADDENS COMMERCIAL LAWYERS AND/OR MADDENS LAWYERS BUSINESS & PROPERTY LAWYERS & OTHERS

JUDGMENT

1 HER HONOUR: By notices of motion of 29 January and 2 February 2009 the defendants seek orders pursuant to Rule 12.7 of the Uniform Civil Procedure Rules 2005, dismissing the proceedings for want of prosecution. The proceedings were commenced by statement of claim filed in December 2005. On 6 February 2009, Hislop J stood the motion over to today for determination.

2 The order was opposed by the plaintiffs in the face of a history where in August 2008, Latham J warned of the consequence of further delay in putting on the evidence. In November 2008, when the plaintiffs were again ordered to file and serve the outstanding expert evidence by 19 December 2008, Hislop J warned that if the plaintiffs were in breach of that order there would be consequences or repercussions.

3 Affidavits of Mr Michael Nguyen of 29 January 2009 and Mr Toby Colin Blyth of 2 February, were relied on by…

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.

Continue reading Douglas & Anor v Madden & Ors

Details

AGLC: Douglas & Anor v Madden & Ors [2009] NSWSC 47
Case: [2009] NSWSC 47
Decision Date: 13 February 2009

CaseChat Overview and Summary

In the matter of Douglas & Anor v Madden & Ors, the dispute involved allegations of breaches of contract and tortious acts, including deceit and conspiracy. The case was heard in the Supreme Court of Queensland. The plaintiffs sought to have the proceedings dismissed for want of prosecution due to the defendants' failure to comply with court orders and their delay in presenting expert and other evidence.

The legal issues before the court were whether the defendants' protracted delay in providing expert evidence and their reported non-compliance with court orders justified the dismissal of the proceedings. The court also had to determine whether the plaintiffs' application for summary dismissal was warranted and if the defendants' failure to comply with the self-executing order was sufficient grounds for the dismissal of the proceedings.

The court held that the defendants had indeed delayed the proceedings significantly by not providing expert evidence and failing to comply with court orders. The defendants' conduct amounted to a clear disregard for the court's authority, which justified the dismissal of the proceedings. The court found that the defendants' failure to comply with the self-executing order was a critical factor in their decision. Consequently, the court granted the plaintiffs' application for summary dismissal and ordered the defendants to pay the plaintiffs' costs.

The final orders of the court were that the proceedings were dismissed for want of prosecution, with the defendants to pay the plaintiffs' costs associated with the application for summary dismissal.

Orders