KB Productions v Kurt

[2015] NSWSC 630

Supreme Court

New South Wales

Medium Neutral Citation:	KB Productions v Kurt [2015] NSWSC 630
Hearing dates:	22 May 2015
Date of orders:	22 May 2015
Decision date:	22 May 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	See paragraph 7
Catchwords:	CIVIL LAW – originating process not filed – no appearance on behalf of the plaintiff - matter struck out of the list
Category:	Procedural and other rulings
Parties:	KB Productions 2001 Pty Ltd (1st Plaintiff) Kangaoo Property Holdings T/A The Lexington Café (2nd Plaintiff) Amy Kurt (1st Defendant) Anur Kurt (2nd Defendant)
Representation:	Counsel: No appearance on behalf of the Plaintiffs Mr L Rizos (Defendants)
File Number(s):	2015/150678

ex tempore Judgment

1. On 20 May 2015, outside the ordinary business hours of the Court, urgent orders were made ex parte at the request of the plaintiff, KB Productions 2001, restraining the first and second defendants from taking action to evict the plaintiff from premises in Lexington Drive at Bella Vista. The plaintiff contended that it was about to be locked out of a café it was then operating, in breach of a lease over the premises.

2. The orders that were made on that date listed the matter this morning before the court at 10am and directed the plaintiff to file and serve its originating process by 5pm yesterday, 21 May 2015. No process was filed or served by the plaintiff and it is, accordingly, in breach of the court’s orders. This morning there has been no appearance of the plaintiff before the court.

3. A message was received that counsel had been instructed but was not available until 11am. Accordingly, the court extended to counsel the courtesy of standing the matter down to 11am. At 11am there was again no appearance of any person for the plaintiff and the matter was further stood down for some fifteen or so minutes whilst my tipstaff made enquiries of the plaintiff’s counsel.

4. The result of that enquiry was that counsel was engaged elsewhere. The message conveyed to the plaintiff was that the matter would be re mentioned at 11.15am and dealt with and again no party has appeared for the plaintiff.

5. There is nothing before the court because there was no originating process filed in accordance with the court’s directions.

6. The defendants have attended. They were here at 9.30am and they are represented by counsel. They seek to have the matter disposed of forthwith, with no further delay and they ask for their costs of today. In view of the breach of the court’s order by the plaintiff, the failure of the plaintiff to prosecute the matter and appear before the Court, it seems to me reasonable that the defendant ought to have the matter quickly disposed of, and additionally costs of today.

Orders

7. 7    Accordingly the orders that I make are these:

1. The matter is struck out of the list there being nothing before the court.

2. Order for costs in favour of the first and second defendants for today.