Knauf Plasterboard Pty Limited v S Banovic Holdings Pty Limited
[2018] NSWSC 693
•16 May 2018
Supreme Court
New South Wales
Medium Neutral Citation: Knauf Plasterboard Pty Limited v S Banovic Holdings Pty Limited [2018] NSWSC 693 Hearing dates: 16 May 2018 Decision date: 16 May 2018 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.7, that the defence filed on 18 December 2017 be struck out.
(2) Order the defendants to pay the plaintiff's costs of the notice of motion.Catchwords: PRACTICE AND PROCEDURE – repeated failure by defendants to respond to request for particulars of their defence – defendants’ solicitor ceased to act – defence struck out for want of due despatch Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 12.7, 42.1 Category: Procedural and other rulings Parties: Knauf Plasterboard Pty Ltd (Plaintiff)
S Banovic Holdings Pty Limited (First Defendant)
M Perikic Holdings Pty Limited (Second Defendant)
D Perokic Holdings Pty Limited (Third Defendant)
Steven Banovic (Fourth Defendant)
Daniel Perikic (Fifth Defendant)Representation: Counsel:
Solicitors:
P Hutchinson (Plaintiff)
No appearance by defendants
Gartree Thomson Lawyers (Plaintiff)
File Number(s): 2017/322415
Judgment – EX TEMPORE
Introduction
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By notice of motion filed on 2 May 2018, the plaintiff, Knauf Plasterboard Pty Ltd, moves for an order pursuant to r 12.7(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the defence filed by the defendants on 18 December 2017 be struck out. UCPR r 12.7 relevantly provides:
“(2) If the defendant does not conduct the defence with due despatch, the Court may strike out the defence, either in whole or in part, or make such other order as the Court thinks fit.”
Evidence in support of application
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In his affidavit in support of the application, Mr Hutchinson, who appears on behalf of the plaintiff, deposes as follows. He is the solicitor on the record for the plaintiff, which filed a statement of claim on 25 October 2017. Between that date and 13 December 2017, all defendants were served with the statement of claim.
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On 18 December 2017 a joint defence was filed on behalf of the defendants by their solicitor, Marc Ryckmans of Somerset Ryckmans, who had filed a notice of appearance on 13 December 2017.
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On 18 January 2018 the plaintiff made a request for further and better particulars of the defence. No response was forthcoming. On 12 March 2018 the plaintiff wrote to the defendants’ solicitor requesting a response to its request for particulars and confirming that, if no response was received, the plaintiff would seek to have the defence struck out pursuant to UCPR r 12.7. At that time the solicitor with day-to-day carriage of the matter was Nicholas Fasullo, of Somerset Ryckmans.
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On 28 March 2018 the Court made orders by consent directing the defendants to reply to the plaintiff's request for further particulars by 11 April 2018. On that date, 11 April 2018, the defendants' solicitor filed and served a notice of intention of ceasing to act. On 11 April 2018 Mr Hutchinson spoke with an employee of Somerset Ryckmans who informed him that the firm had filed a notice of intention to cease to act as they were unable to obtain instructions from the defendants.
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The matter was listed for directions on 18 April 2018, on which date Mr Hutchinson informed the Court that he had been informed that the defendants' solicitor would file a notice of ceasing to act later that day. The Registrar stood the matter over to 16 May 2018.
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On 18 April 2018, Mr Hutchinson sent an email to Mr Fasullo informing him of what had occurred in Court that day and the orders made by the Court, which were as follows:
“1. The matter be adjourned until 16 May 2018 to allow time [to the plaintiff] to file an application to dismiss the defence due to lack of due despatch;
2. The motion is returnable on 16 May 2018; and
3. The defendants' solicitor was to notify his former clients of these orders.”
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Mr Hutchinson has also deposed that on 18 April 2018 the defendants' solicitor filed and served a notice of ceasing to act.
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The defendants have still failed to provide further and better particulars in accordance with the Court's directions, or at all. I am informed by Mr Hutchinson from the bar table that on 28 March 2018 the fifth defendant was made bankrupt (reference number NSW 1203/18/7).
Consideration
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I am satisfied on the basis of the evidence of Mr Hutchinson that the defendants have been informed by their former solicitor of the orders of the Court and the plaintiff's application. Having regard to the narrative which I have set out above, I am satisfied that none of the defendants have conducted the defence with due despatch. Their repeated failure to provide particulars has been such as to give rise to the inference that they do not intend to defend the proceedings.
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In these circumstances I am persuaded that it is appropriate to strike out the defence filed by the defendants on 18 December 2017.
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There does not appear to be any reason why the general rule that costs follow the event ought not be applied: UCPR r 42.1.
Orders
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For the reasons given above, I make the following orders:
Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.7, that the defence filed on 18 December 2017 be struck out.
Order the defendants to pay the plaintiff's costs of the notice of motion.
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Decision last updated: 17 May 2018
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