Elphick v Elphick

[2016] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation:	Elphick v Elphick [2016] NSWSC 1674
Hearing dates:	25 November 2016
Date of orders:	25 November 2016
Decision date:	25 November 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Proceedings commenced 23 March 2016 dismissed pursuant to r 13.6 Uniform Civil Procedure Rules 2005 (NSW)  2. Plaintiff to pay 2nd to 4th Defendants’ costs of the proceedings
Catchwords:	PROCEDURE – dismissal of proceedings – failure of plaintiff to appear – r 13.6 UCPR
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	Kenneth Ronald Elphick (First Plaintiff) Point Corp (Australia) Pty Limited (Second Plaintiff) Vickie Elphick (First Defendant) Leslie Nichols (Second Defendant) Judelle Christine Nichols (Third Defendant) Nichols Constructions Pty Limited (Fourth Defendant)
Representation:	Counsel: No appearances (Plaintiffs) Unrepresented (First Defendant) D Macfarlane (Second, Third & Fourth Defendants)   Solicitors: Unrepresented (Plaintiffs) Unrepresented (First Defendant) Wilson & Co Lawyers (Second, Third & Fourth Defendants)
File Number(s):	2016/90702

Judgment

1. These proceedings commenced on 23 March 2016. They are related to proceedings commenced in 2014 by Nicholls Constructions Pty Limited, who is the Second Defendant in the present proceedings.

2. The earlier proceedings were settled at a mediation and required payment of some $4.8 million by a related party to the present Plaintiffs by close of business on 29 March 2016. That party failed to make the payment by that date, and some six days earlier these proceedings were commenced by the present Plaintiffs.

3. These proceedings were listed for hearing before Garling J on 23 August 2016. On that day the Plaintiffs sought an adjournment, which was granted with associated directions on the first day of the hearing.

4. The Plaintiffs wished to amend their Statement of Claim, and a Motion to do so was due to be heard on 16 September 2016. On that day, the Plaintiffs applied to adjourn the hearing of that Motion because of issues that had been raised with the proposed amended pleading they wished to file. At all relevant times to that point the Plaintiffs have been represented by Trevor Hall, solicitor.

5. On 7 October the solicitor for Nicholls Constructions received a letter from the first plaintiff which said:

Please be advised that I wish to withdraw from this matter, effective immediately. I understand costs will be incurred against me.

6. Some four days later, the solicitor for Nicholls Constructions received an email from Mr Hall saying he felt it was best that the proceedings be discontinued on the usual basis.

7. Further correspondence ensued which included the sending of a Notice of Discontinuance, signed by the Plaintiffs, to the solicitors for Nicholls Constructions. However, the Notice of Discontinuance did not provide for payment of costs by the Plaintiffs in relation to the defendant.

8. The matter was again listed on 28 October 2016, when the Nicholls Constructions parties appeared but there was no appearance for the Plaintiffs. On the same day the solicitor received from Trevor Hall an email attaching a Notice of Intention of Ceasing to Act. Thereafter, the solicitor for Nicholls Constructions forwarded correspondence to the Plaintiffs directly and to Ainslie Elphick, who is the director of the Second Plaintiff.

9. The matter again was listed before the Court on 11 November 2016. When the Nicholls parties appeared, there was no appearance for the Plaintiffs. On that day the Court ordered that the matter be re-listed for referral to the Duty Judge.

10. On 14 November the Court forwarded a letter to the Plaintiffs giving notice that the proceedings had again been listed today, and saying that if there were no attendance by or on behalf of the Plaintiffs today the Court may dismiss the proceedings. There was no appearance this morning, and the matter was referred to me to dismiss the proceedings pursuant to r 13.6 UCPR.

11. Rule 13.6 provides:

13.6 Non-appearance by plaintiff

(cf SCR Part 13, rule 5A)

(1)   If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing.

(2)   If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings.

(3)   This rule does not restrict any other power of the court to dismiss proceedings.

12. Based on the history I have related, which is a relatively brief summary of what is contained in the affidavit of Gregory John Wilson sworn 24 November 2016, read on the present application, I am satisfied that the proceedings should be dismissed as requested.

13. Accordingly, the proceedings commenced 23 March 2016 are dismissed pursuant to r 13.6 Uniform Civil Procedure Rules 2005 (NSW)

14. The Plaintiffs should pay the Second to Fourth Defendants' costs of the proceedings.

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Decision last updated: 28 November 2016