Erceg v Erceg - [2017] WASC 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ERCEG -v- ERCEG [2017] WASC 267

CORAM: ALLANSON J

HEARD: 22 AUGUST 2017

DELIVERED : 22 AUGUST 2017

FILE NO/S: CIV 1544 of 2015

BETWEEN: TIMOTHY ERCEG
Plaintiff
AND
JOHN ERCEG
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Practice and procedure - Plaintiff fails to attend at trial - Defendant entitled to judgment on claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 34 r 2

Result:

Claim dismissed

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant              :     Ms E C Hensler & Ms K Woods
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     No appearance
First Defendant              :     Michael Paterson & Associates
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Armour v Bate [1891] 2 QB 233

ALLANSON J: Timothy Erceg and John Erceg are brothers. Timothy commenced this action on 14 April 2015 by an originating summons seeking an order that the court extend the operation of a caveat he had lodged against the title of a property in Carlisle. The caveat was extended on an interlocutory basis. The trial to decide whether Timothy has the interest he claims was set down for hearing on 22 August 2017. Timothy did not attend. His action was dismissed for the reasons which follow.
The property, at 79C Planet Street, Carlisle, is one lot in a triplex development. It is registered in the name of John, who has owned the land since 1986. John is named as the first defendant to the action. Timothy claims to be the beneficial owner of 79C Planet Street on alternative grounds: that John is estopped from denying that Timothy has that interest; or that John holds title subject to a constructive trust on behalf of Timothy. John denies the claim.
I have been the case manager for this action since April 2015.
On 17 April 2015, I heard Timothy's application to extend the operation of the caveat and ordered that it be extended until further order of the court. I further ordered that the proceedings commenced by originating summons be deemed to be an action and proceed upon pleadings. Timothy was then in the United States of America but was legally represented in Western Australia.
A statement of claim was filed on 15 May 2015, seeking orders including a declaration that John Erceg holds 79C Planet Street in trust for him and an order directing that John convey the land to him. John filed a defence on 5 June 2015. I made further interlocutory orders over the following months.
In March 2016, John filed an amended defence and a counterclaim. On 27 April 2016, Timothy filed a reply and defence to counterclaim.
Timothy remained in the United States, but was able to progress the action through his solicitors in Perth. In May 2016, however, the solicitors ceased to act. Timothy has not been represented since then. He has not returned to Australia. He has been able to attend directions hearings and a strategic conference by telephone, but has been unable to efficiently advance his claim or respond to the counterclaim.
On 9 September 2016, I made orders in preparation for trial, including for the filing of non‑expert evidence. To meet difficulties that Timothy said he might encounter, the order permitted him to file and serve signed witness statements or unsigned statements disclosing the substance of the testimony that a proposed witness was expected to give.
Timothy did not comply with programming orders. In November 2016, he sought orders extending the time to file witness statements through to March 2017. He said that he could only get witness statements when he returned to Australia because he did not know the contact details and whereabouts of 'some 20 witnesses I need to contact'.
On 28 November 2016, John moved for orders that the statement of claim be struck out and judgment be entered for him. On 14 December 2016, I refused John's application and extended the time for Timothy to file and serve witness statements to 16 December 2016, permitting them to be filed by email to my Associate with the originals to be filed when practicable. I further ordered that Timothy may only rely on additional witness statements with leave of the trial judge and 'by filing an affidavit explaining the cause of the delay and attaching the witness statements sought to be relied upon'.
At that time I provisionally reserved five days for trial, commencing 26 June 2017.
On 17 January 2017, Timothy applied again to extend the time for filing his witness statements. On 17 January, he filed an affidavit in which he referred to eight completed witness statements and a further 18 or 19 witnesses, some not identified by name: for example, 'Michael the tiler' and 'Phil the plumber'. He also sought an order for John to provide partnership documents and other documents by 10 April 2017 and an order that the defence and counterclaim be struck out.
On 18 January 2017, because there was an unresolved (and quite confusing) dispute between the parties about access to documents, I ordered that by 1 February 2017, Timothy was to provide a written request to John's solicitors detailing the documents of the partnership to which he required access. John was to provide access by 22 February, or give notice of any objection to providing those documents. That unfortunately was not successful in resolving the dispute about documents.
On 24 March 2017, John applied again for orders that Timothy file his witness statements and sought a springing order for the claim to be struck out. John was anxious to bring this action to completion. On 29 March 2017, I refused the application for a springing order and ordered that the action be listed for trial for three days commencing on 22 August 2017, giving Timothy just short of five months to prepare. I further ordered that John (as plaintiff by counterclaim) enter the matter for trial, and prepare and file the book of papers for the judge. Rather than ordering a consolidated book of documents, I ordered that each party was to file and serve a copy of the documents on which he intended to rely at trial. Timothy attended that directions hearing by telephone.
By 29 March 2017, while Timothy had lodged some documents, there was nothing which could amount to an admissible witness statement, or a statement of the substance of admissible evidence to be given by any witness.
On 12 July 2017, Timothy wrote to the court by email stating that he could not come to Western Australia for the hearing because of the health of his wife. He was advised that if he wanted the trial adjourned he should make a formal application, supported by an affidavit setting out why the trial should be adjourned. He has made no application.
On 28 July 2017, John entered the matter for trial.
At the date listed for trial, Timothy had not filed any witness statements on time, and had not applied for leave to file and serve or rely on any witness statements. He had not filed or served any documents upon which he sought to rely at trial.
Timothy did not attend the trial. The court proceeded to trial under Rules of the Supreme Court 1971 (WA) O 34 r 2. The first defendant relied upon the authority of Armour v Bate [1891] 2 QB 233, 234, that on failure of the plaintiff to appear the court may dismiss the action with costs. Quite apart from that authority, on his pleaded case Timothy must lead evidence to establish his claim or it must fail. John is entitled to judgment dismissing the claim and consequential orders for the removal of the caveat and costs.
Because the action had maintained the caveat over the property in Carlisle, it was in the interests of justice to immediately make orders on the claim.
Separate reasons will be delivered for the decision on the counterclaim.