Douglas v Madden (No 3) - [2009] NSWSC 412

CITATION: Douglas & Anor v Madden & Ors (No 3) [2009] NSWSC 412

HEARING DATE(S): 15 May 2009

JUDGMENT DATE :
22 May 2009

JUDGMENT 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 749

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 MJ Jenkins, counsel - Plaintiffs
Mr I Griscti, counsel - Defendants

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

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Friday, 22 May 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 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 &…

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 3)

Details

AGLC: Douglas v Madden (No 3) [2009] NSWSC 412
Case: [2009] NSWSC 412
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the case of Douglas v Madden, the plaintiffs sought to vary a self-executing order that had been made in relation to proceedings between the parties. The dispute involved a disagreement over a contract and arose in the Supreme Court of New South Wales. The plaintiffs, Douglas, sought to vary the order on the basis that there had been a short delay in complying with the order due to an error made by their representative.

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