CITATION: Douglas & Anor v Madden & Ors (No 3) [2009] NSWSC 412 HEARING DATE(S): 15 May 2009
JUDGMENT DATE :
22 May 2009JUDGMENT OF: Schmidt AJ DECISION: Orders made on 13 February 2009 be varied by replacing the words ‘4pm on 27 February’ with the words ‘12 noon on 2 March 2009’, and that the plaintiffs bear the defendants’ costs of the motion, as agreed or assessed. CATCHWORDS: PROCEDURE - judgments and orders - amending, varying and setting aside - order sought to vary self executing order - plaintiffs failure to comply with self executing order - short delay - representative error - orders varied - costs LEGISLATION CITED: Civil Procedure Act 2005 CATEGORY: Principal judgment CASES CITED: Douglas & Anor v Madden & Ors [2009] NSWSC 47
Douglas & Anor v Madden & Ors (No 2) [2009] NSWSC 194
Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Nominal Defendant v Manning (2000) 50 NSWLR 139
O'Neill v Kaddatz [1964] NSWR 1280
Rayscan Management Pty Ltd and Ors v Moodliar [2008] NSWSC 857
Smith v Morton (2004) 40 MVR 347
Sophron v The Nominal Defendant (1957) 96 CLR 469
Stollznow v Calvert [1980] 2 NSWLR 749PARTIES: 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 DefendantFILE NUMBER(S): SC 20435/05 COUNSEL: Mr MJ Jenkins, counsel - Plaintiffs
Mr I Griscti, counsel - DefendantsSOLICITORS: Bryan Gorman & Co - Plaintiffs
HWL Ebsworth Lawyers - First and Second Defendants
Middletons - Third Defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SCHMIDT AJ
Friday, 22 May 2009
JUDGMENT020435/05 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
1 HER HONOUR: By amended motion of 22 April 2009, the plaintiffs again seek orders varying a self executing order made on 13 February 2009, to permit the filing of outstanding evidence by 12 noon on 2 March 2009, rather than by 4pm on 27 February 2009. The purpose of the order sought is to overcome the effect of the plaintiffs' failure to comply with the self executing order, with the result that the order took effect and the proceedings now stand dismissed. The same orders have already been sought and refused. (See Douglas & Anor v Madden & Ors (No 2) [2009] NSWSC 194.) The self executing orders dismissing the proceedings were made in a judgment given on 13 February 2009. (See Douglas &…
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- AGLC
- Douglas v Madden (No 3) [2009] NSWSC 412
- Case
- [2009] NSWSC 412
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the delay in compliance was justified and whether the error made by the representative constituted a sufficient ground for varying the order. The legal issues centered around the interpretation of the self-executing order, the consequences of the delay in compliance, and the effect of the representative's error on the plaintiffs' ability to comply with the order.
The court found that the delay in compliance was not significant and that the error made by the representative was a genuine mistake. The court held that the plaintiffs had not acted in bad faith and that there were sufficient grounds to vary the order. The court considered the circumstances of the case and the need for flexibility in the enforcement of court orders. The court varied the order to accommodate the delay and set aside the costs associated with the application to vary the order.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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