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Douglas v Madden (No 2)

Douglas v Madden (No 2)

Case [2009] NSWSC 194 26 March 2009

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CITATION: Douglas & Anor v Madden & Ors (No 2) [2009] NSWSC 194

HEARING DATE(S): 20 March 2009

JUDGMENT DATE :
26 March 2009

JUDGMENT OF: Schmidt AJ

DECISION: Orders sought in the plaintiffs’ motion are refused.
The plaintiffs are ordered to pay the defendants' costs of the motion, as agreed or assessed.

CATCHWORDS: PROCEDURE - judgments and orders - amending, varying and setting aside - notice of motion - application sought to vary self executing order - plaintiffs failure to comply with self executing order - short delay in filing evidence - no explanation given - orders sought refused - costs

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules
Trade Practices Act 1974 (Cth)

CASES CITED: Douglas & Anor v Madden & Ors [2009] NSWSC 47
FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others (1987-8) 165 CLR 268
McWilliam and Ors v Watson and Ors [2000] NSWSC 761
Rayscan Management Pty Ltd & Ors v Siv Nandan Moodliar [2008] NSWSC 857
The State of Queensland & Anor v JL Holdings Pty Limited (1996) 189 CLR 146

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 20435/05

COUNSEL: Mr L Gor - Plaintiffs
Mr I Griscti - Defendants

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

- 15 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Thursday, 26 March 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 motion of 3 March 2009, the plaintiffs seek orders varying a self executing order made on 13 February 2009, in terms that ‘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’, as well as costs of the motion. (See Douglas & Anor v Madden & Ors [2009] NSWSC 47). The variation sought was that the words ‘4 pm on 27 February 2009’ be replaced with the words ‘12 noon on 2 March 2009’.

2 These orders were sought because the plaintiffs failed to comply with the self executing order. The result was that unless the order of variation sought is made, the proceedings stand dismissed.

3 It was not in issue that the plaintiffs served two affidavits before 5 pm on 13 February, four volumes of documents on the following Monday and that the plaintiffs’…

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 v Madden (No 2)

Details

AGLC: Douglas v Madden (No 2) [2009] NSWSC 194
Case: [2009] NSWSC 194
Decision Date: 26 March 2009

CaseChat Overview and Summary

The case of Douglas v Madden (No 2) involved the plaintiffs, Douglas and another, against the defendant, Madden. The dispute centred around the plaintiffs' application to vary a self-executing order made in a prior proceeding. The matter was heard in the Supreme Court of New South Wales. The plaintiffs sought to alter the order, which they had failed to comply with, and requested the court to set aside the defendant's right to costs. The defendant opposed the application, arguing that the plaintiffs had not provided a satisfactory explanation for their non-compliance and had only filed their evidence shortly before the hearing.

The primary legal issue before the court was whether the plaintiffs' failure to comply with the self-executing order and their delay in filing evidence justified the variation of the order and the setting aside of the defendant's right to costs. The court had to consider the principles of procedural fairness and the importance of adhering to court orders. Additionally, the court assessed whether the plaintiffs' application was made in good faith and whether there were any exceptional circumstances that warranted the relief sought.

The court held that the plaintiffs' failure to comply with the self-executing order and the short delay in filing evidence were significant factors that undermined the integrity of the court process. The plaintiffs had not provided a satisfactory explanation for their actions, which further weakened their position. The court found that there were no exceptional circumstances that would justify varying the self-executing order or setting aside the defendant's right to costs. Consequently, the application was dismissed, and the plaintiffs were ordered to pay the defendant's costs of the application.

Orders