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Duncan-Strelec v Tate

Duncan-Strelec v Tate

Case [2009] NSWSC 1252 20 November 2009

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CITATION: Duncan-Strelec v Tate [2009] NSWSC 1252

HEARING DATE(S): 30 October 2009

JUDGMENT DATE :
20 November 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to para 49 of judgment.

CATCHWORDS: PROCEDURE – evidence - plaintiffs seek leave to serve lay evidence in chief and expert evidence – repeated defaults by plaintiffs in complying with orders for service of affidavits – failure to seek directions for the adducing of expert evidence – leave given to rely on lay affidavit – leave refused to rely on expert evidence - PROCEDURE – summary dismissal - first and second defendants seek summary dismissal of proceedings – consideration of dictates of justice – limitation period not expired - summary dismissal may cause further delay and add additional costs – summary dismissal refused

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Duncan-Strelec v Tate [2008] NSWSC 1145
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Birkett v James [1978] AC 297
Stollznow v Calvert [1980] 2 NSWLR 749
Hartigan v International Krishna Consciousness [1999] NSWSC 57
Beverage Bottlers (SA) Ltd (in liq) v Abode Enterprises Pty Ltd [2009] SASC 272
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Field t/as M & N Waterproofing & Restoration Services v Luxor Products Pty Ltd [2009] QSC 218
Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
In re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 753
State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487
GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710

PARTIES: 1st Plaintiff: Amanda Duncan-Strelec
2nd Plaintiff: David Strelec
3rd Plaintiff: Dunlec Pty Ltd
1st Defendant: Thomas Richard Tate
2nd Defendant: Ruth Tate
3rd Defendant: Wamego Pty Ltd

FILE NUMBER(S): SC 6428/06

COUNSEL: Plaintiffs: R Bellamy
Defendants: A Lo Surdo

SOLICITORS: Plaintiffs: Kemp Strang
Defendants: Jackson Lalic Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 20 November 2009

6428/06 Amanda Duncan-Strelec & 2 Ors v Thomas Richard Tate & 2 Ors

JUDGMENT

1 HIS HONOUR: Two applications were heard together. The plaintiffs seek leave to serve lay evidence in chief on or before 6 November 2009 and expert evidence on or before 14 December 2009. The first and second defendants seek an order pursuant to s 61 of the Civil Procedure Act 2005 (NSW) that the proceedings against them be dismissed.

2 Section 61 relevantly provides:

“ 61 Directions as to practice and procedure generally

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

...

(3) If a party to whom such…

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 Duncan-Strelec v Tate

Details

AGLC: Duncan-Strelec v Tate [2009] NSWSC 1252
Case: [2009] NSWSC 1252
Decision Date: 20 November 2009

CaseChat Overview and Summary

In Duncan-Strelec v Tate, the plaintiffs sought leave to serve lay and expert evidence after multiple defaults in complying with orders for the service of affidavits. The defendants moved for summary dismissal of the proceedings on the basis of the plaintiffs' failures and the expiry of the limitation period. The court was tasked with deciding whether to allow the plaintiffs to serve lay and expert evidence despite their defaults, and whether to grant the defendants' application for summary dismissal.

The court examined the plaintiffs' repeated defaults in serving affidavits and their failure to seek directions for the adducing of expert evidence. It noted the potential for further delay and additional costs if the defendants' motion for summary dismissal was granted. The court concluded that while the plaintiffs' defaults were serious, the plaintiffs had shown a willingness to comply with the procedural requirements. Consequently, the court granted leave for the plaintiffs to serve a lay affidavit but denied leave to rely on expert evidence due to the lack of directions sought.

The court also considered the defendants' application for summary dismissal, weighing the dictates of justice against the expiry of the limitation period. It found that granting summary dismissal might result in further delay and increased costs, which would not be in the interests of justice. The court therefore refused the defendants' application for summary dismissal.

The court's final orders were that the plaintiffs were granted leave to serve a lay affidavit but not expert evidence, and the defendants' application for summary dismissal was refused.

Orders