Gujarat NRE Australia Pty Ltd v Gary Alexander Williams
[2009] NSWSC 963
•11 September 2009
CITATION: Gujarat NRE Australia Pty Ltd & Anor v Gary Alexander Williams & Ors [2009] NSWSC 963 HEARING DATE(S): 11 September 2009 JURISDICTION: Equity - Commercial List JUDGMENT OF: Bergin CJ in Eq EX TEMPORE JUDGMENT DATE: 11 September 2009 CATCHWORDS: [Orders] - Non-compliance with Court orders - [Dismissal] - Dismissal of proceedings for want of due despatch - Numerous failures to serve evidence - No proper evidence of steps in place to prepare matter for hearing LEGISLATION CITED: Uniform Civil Procedure Rules 2005 PARTIES: Gujarat NRE Australia Pty Ltd (Plaintiff)
Gary Alexander Williams (First Defendant)
FILE NUMBER(S): SC 50056 of 2006 COUNSEL: R Horsley (Plaintiff)
T Tzovaras (Solicitor) (First Defendant)SOLICITORS: Gillard Consulting Lawyers (Plaintiff)
Tzovaras Legal (First Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST
BERGIN CJ in Eq
11 SEPTEMBER 2009
50056 OF 2006 GUJARAT NRE AUSTRALIA PTY LTD & ANOR v GARY ALEXANDER WILLIAMS & ORS
JUDGMENT
1 This is an application brought by Notice of Motion by the first defendant, Gary Alexander Williams (the defendant), for the dismissal of the main proceedings against him on the basis that the plaintiff has not prosecuted the proceedings with due despatch. The application is made pursuant to Pt 12 r 7 (1) of the Uniform Civil Procedure Rules 2005.
2 The Motion was filed on 14 July 2009 pursuant to leave granted by the Commercial List Judge on 10 July 2009. The evidence relied upon by the applicant is that of Ted Dorotheos Tzovaras, solicitor, sworn on 14 July 2009. The evidence relied upon by the plaintiffs is that of Brian James Gillard, solicitor, sworn on 17 July 2009. The defendant also relied on parts of the affidavit of Mr Gillard sworn 7 July 2009.
3 The proceedings were commenced three and a half years ago on 28 April 2006 and have been listed in the Commercial List on numerous occasions. In July 2006 the first order was made for the plaintiffs to serve any affidavit on which they intended to rely by 13 October 2006. The defendants and the cross-claimants were to file any affidavits by 10 November 2006 and the plaintiffs were to file and serve any affidavits in reply by 24 November 2006. Orders were also made for discovery. No party complied with the Court’s orders.
4 It was in the latter part of 2006 that the defendants sought security for costs. Orders were made for security in October 2006 and were complied with in November 2006. A fresh timetable was made on 17 November 2006 repeating the orders that had been made on 21 July 2006 with new dates. No party complied with those orders, however the parties exchanged categories of documents, it appears in an informal way. Lists of documents were not filed.
5 A year after the first orders were made the Court made almost identical orders again. No party complied with those orders. On 12 October 2007 the same orders were made and the same outcome occurred. On 15 February 2008 orders were made for lists of documents to be filed and inspection to occur and the same orders were made for the filing of evidence, of course with new dates. No party complied with any of those orders.
6 A year ago in September 2008 the plaintiffs decided they wanted to amend their pleadings. On 17 October 2008 the plaintiffs were given leave to file an amended Commercial List Statement by 27 October 2008. It was not until 19 December 2008 that an Amended Commercial List Statement was filed and on 20 February 2009 the Court again made orders for discovery, this time for supplementary discovery, and once again for the plaintiffs to serve their evidence and the defendants to serve their evidence. Needless to say the same outcome occurred, although I should say that the defendant's position is that no supplementary discovery is necessary on his part because everything has been discovered.
7 On 20 February 2009 I listed the matter for hearing on 3 August 2009 for ten days. To state the obvious, it was necessary for the plaintiffs to get their evidence ready for that hearing. Obviously if the defendants were going to prosecute their Cross-Claims the same had to occur on their side.
8 On 7 July 2009 the plaintiffs filed a Motion for the vacation of the trial date. Mr Gillard's affidavit in support of that application referred to some staffing changes at his firm, presumably to persuade the Court that he was under pressure at work and needed additional time to get the evidence ready. His affidavit evidence included:
I am in the process of finalising the evidence for the Plaintiffs and estimate that I will require up to 3 weeks to do so.
9 The Motion to vacate the trial date was adjourned to 17 July 2009. The matter was before the Commercial List Judge on 10 July 2009 when the defendants were granted leave to serve the Motion to strike out the claim for want of prosecution returnable on 17 July 2009, at the same time that the Motion for vacation of the trial date was listed.
10 On 17 July 2009 consensual orders were made vacating the ten day trial with an order that the plaintiffs pay the defendants' costs thrown away by vacation of the trial dates. The parties consented to the proceedings being stood over to 7 August 2009 into the Motions List for the hearing of the present Motion to dismiss the proceedings against the defendant for want of prosecution. On 7 August 2009 the matter was listed today for hearing of that Motion.
11 Mr Gillard's affidavit sworn on 17 July 2009, which appears to have been filed in support of the application to vacate the trial date, goes into more detail than his earlier affidavit and refers to a number of breaches by the defendant of the orders made by the Court. Mr Gillard refers to the fact that the defendant did not comply with the Court orders for the filing of his Commercial List Response, his Cross-Summons and Commercial List Cross-claim Statement and that he failed to exchange categories in a timely fashion and did not exchange Lists of Documents. Mr Gillard also referred to the fact that the defendant did not provide his categories until two days before the verified lists were due on 1 July 2007.
12 Mr Gillard also referred to the fact that in mid-2008, in the absence of discovery by the defendant and the other defendants, the plaintiff issued various subpoenas. Mr Gillard’s affidavit evidence also included:
The Plaintiffs are entitled to rely on the First Defendant's failure to discover documents identified in the Categories of Documents served on 12 March, 2007.
…
I note that the First Defendant does not address the question of evidence in his own Cross-claim.
13 Mr Gillard then described various proceedings between associated parties in this Court and in other jurisdictions over the period 2005 to 2009. One of the matters referred to by Mr Gillard was an allegation against the defendant that he remained passive in the face of failures by other defendants to comply with the Court orders. Mr Gillard then gave the following evidence:
I have taken time to further examine the evidence required to support the Plaintiffs' claim and estimate that I will require up to 8 weeks to finalise its lay evidence.
14 That, of course, would result in the evidence being finalised today, 11 September 2009. Consistently with the history of this matter the evidence is not ready. There is no evidence before me of when it will be ready, albeit that Mr Horsley, counsel for the plaintiff, attempted to suggest that he had instructions that it would be ready in two weeks. Mr Tzovaras submitted that there could be no confidence at all in the estimates given by the plaintiffs' solicitor, firstly of three weeks on 7 July 2009, secondly of eight weeks on 17 July 2009, and no estimate today but some instructions about two weeks.
15 The proceedings relate to the purchase of a colliery in the Wollongong area. It is apparent that the defendant provided consultancy services in relation to the purchase of the colliery on a previous occasion. It is also apparent that the defendant and the other defendants formed a consortium to purchase that colliery but then joined together with the plaintiffs in a joint venture to purchase the colliery. The plaintiffs claim that a joint venture agreement and a sale agreement were entered into in October 2004. They claim that before they committed themselves to the agreements the defendants, including the defendant, made certain representations about the capacity of the colliery, the operation of the colliery and the financial position of the colliery, including that there were no material adverse findings from due diligence enquiries that had been conducted. The plaintiffs allege that these representations were false and that the defendants were in breach of certain warranties about the colliery’s performance. The plaintiffs claim damages from each of the defendants. The claim has its complexities and the defendant cross-claims against the plaintiffs for alleged outstanding instalment payments. The plaintiffs deny that any instalments are owed to the defendant.
16 Although Mr Horsley relied on the evidence of Mr Gillard in support of his submission that I would not dismiss the claim against the defendant for the plaintiffs' failure to prosecute their claims with due despatch he was not able to point to any evidence of what the plaintiffs have done to prepare their evidence. There is no evidence of any officer of the plaintiff attending to any aspect of the preparation of this case against the defendant. There is no information at all before the Court as to where the directors of the plaintiffs are, and whether or not they are available to assist the plaintiffs' solicitor to prepare the evidence. There is no detail of what statements have been prepared or affidavits in draft or otherwise. There are simply these blanket statements that the evidence will take three weeks, then eight weeks and possibly now an extra two weeks to prepare.
17 Mr Horsley attempted to avoid the order being made by suggesting that there would be no utility because the defendant would have to somehow still be involved in the proceedings, either as a witness for the other parties and/or a cross-claimant in his own cross-claim. The plaintiffs do not bring any application for dismissal of the Cross-Claim for want of prosecution by the defendant and I am not dealing with that matter at all. I simply refer to it as a matter of the constitution of the proceedings and also by reason of Mr Horsley's submission as to utility.
18 The defendant has been waiting for three years to see the evidence against him. There are serious allegations made against him and not one word of evidence has been served against him over that period. The breaches of the Court orders are breathtaking. There is not one word of apology in any affidavits but merely this bland statement that the orders were not complied with. One alternative is to refuse to make the order by reason of the defendant's non-compliance with the Court’s orders. This is not an application in equity that requires clean hands, however it is an application that needs to be reviewed having regard to the whole of the history of the matter between the parties. On the one hand it is difficult to understand why the defendant has waited three years to make this application, but on the other hand it is in the context of a final trial having been aborted by reason of the plaintiffs’ failure, yet again, to file and serve evidence.
19 I am satisfied that the plaintiffs have not prosecuted the proceedings against the defendant with due despatch. What follows from that finding is the exercise of my discretion as to whether I should dismiss outright the plaintiffs' claim against the defendant today or to give them the claimed two weeks to put on all of their evidence against the defendant.
20 I regard the plaintiffs' conduct as quite shocking, not only by reason of their failure to comply with the Court’s orders but by their obvious lack of understanding of their obligations to the Court. I have no doubt that solicitors have worked hard in some aspects of the case but there has been a total breakdown in the administration of this case by reason of the plaintiffs' failure to serve their evidence and to have the matter ready for trial on 3 August 2009.
21 I do not have any evidence upon which I could be confident that anything will happen in the next two weeks. I am satisfied that the only appropriate order in the circumstances of this case is that the proceedings brought by the plaintiffs against the first defendant be dismissed.
22 I make the following orders:
2. I order that the plaintiffs pay the first defendant's costs of the proceedings from February 2009 to date.
1. I dismiss the plaintiffs' claim against the first defendant for the failure to prosecute that claim with due despatch.
0
0
1