French, A.E. v Wills, J.S.H

[1994] FCA 911

911 9 C

JUDGMENT No. ........ ........ . .. ....... ...

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY	No. NG 544 OF 1993
GENERAT. DIVISION

BETWEEN :

ELIJAA FRENCH and ANOTHER

Applicant

AND :

JAMES SIDNEYHOWBWILLS andANOTHER

Respondent

CORAn:	SACKVILLE J.
PLACE :	SYDNEY RECEIVFD
DATE :	24 NOVEMBER, 1994

FEDERAL COURT OF

AUSTRALIA

PRlNClPnl

REGISTRY

REASONS FOR JUDGMENT

. - ,

HIS HONOUR: In this matter Mr Niven has appeared on behalf of two of the applicants. Mr Niven tells me that he appears on behalf of Mr Gellen, who is one of 13 applicants. He also indicates that he has instructions to act on behalf of one of the other applicants but is not sure which one that might be. The applicants, so I am informed, hold units in a particular block. The proceedings concern the installation of an air-conditioning and ventilation system in the block of units. Two respondents have been named. The proceedings have been settled as against Peter Brand Real Estate Pty Limited, the second respondent. The proceedings remain on foot as against the first respondent, Mr

Wills.

The course of events appears to be that an amended application and amended statement of claim were filed on 17 November 1993, that is over 12 months ago. The proceedings against the second respondent appear to have been resolved by terms of settlement that were dated 15 March 1994 and filed on that day. M r Niven tells me that attempts have been made to serve the first respondent; however, there is no affidavit evidence as to what attempts have been made, what difficulties have been encountered and what the prospects might be for service of the first respondent in the near future, nor have I been provided with affidavit evidence to explain a delay of over 12 months since the proceedings were instituted in this court and a period of eight months since the matter was settled as against the second respondent.

In my view this is not a satisfactory approach to the conduct of the litigation. Either the matter is to be proceeded with or it is not. What I propose to do is take the matter out of the llst, although I shall cause it to be relisted on a date six months from now (24 May 1995). I will give leave to the applicants to apply to relist the matter before the court but any such application will have to be accompanied by affidavits explaining the delay in the conduct of the proceedings and in the service of the first respondent. It may be that when the matter returns to the court the appropriate course of action would be for the proceedings to be dismissed. That, however, should not happen

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without the applicants having an opportunity to put on the evidence to which I have referred and make submissions in that respect.

I certify that this and the preceding 2

pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

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Associate: I " '

Dated: 29 November, 1994

Heard :

24 November, 1994

Place:

Sydney

Decision:

24 November, 1994

Appearances:

M r G. Niven instructed by Messrs Hardings,

Solicitors, appeared for the applicants.

The respondents did not appear.