L and W Developments Pty Limited v Alain Della - [2004] NSWSC 309

CITATION: L & W Developments Pty Limited v Alain Della [2004] NSWSC 309

HEARING DATE(S): 25/03/04

JUDGMENT DATE:
26 March 2004

JURISDICTION:
Equity Division
Commercial List

JUDGMENT OF: Einstein J

DECISION: Stay to be lifted on terms.

CATCHWORDS: Stay of proceedings in Commercial List pending determination of related proceedings in Industrial Relations Commission - Application to lift stay for breach of undertakings to diligently prosecute proceedings before Industrial Relations Commission

LEGISLATION CITED: Industrial Relations Act 1996
IRC Rules 1996

CASES CITED: L and W Development Pty Ltd v Della [2003] NSWCA 140

PARTIES :
L & W Developments Pty Limited (Plaintiff)
Alain Della (Defendant)

FILE NUMBER(S): SC 50143/02

COUNSEL: Mr S Wheelhouse (Plaintiff)
Mr R Butler (Defendant)

SOLICITORS: Gye & Associates (Plaintiff)
Mannix Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 26 March 2004 ex tempore
Revised 21 April 2004

50143/02 L & W Development Pty Limited v Alain Della

JUDGMENT

1 There is before the Court a notice of motion filed on 4 March 2004 pursued by the plaintiff for a vacation of the stay of proceedings ordered on 8 November 2002 in the proceedings.

2 It is unnecessary to repeat the record. Suffice it to say, that the reasons of the Court of Appeal [L and W Development Pty Ltd v Della [2003] NSWCA 140] delivered on 5 June 2003 by Mason P, with whom Giles JA and Santow JA agreed, set out in great detail the then position clarifying the factors which required then to be taken into account in terms of the balancing exercise required by the interests of justice where the subject exercise of discretion came up for determination. Although there has been an interval of time between that date and the hearing of the motion the subject of this judgment, as a general matter, it is quite plain that those very same factors require to be taken into account. There are, however, additional matters which require to be examined and carefully weighed in the balance.

3 In other circumstances, it may have been necessary for the Court to treat with the principles governing the stay sought in these proceedings and the jurisprudential background underpinning the proper exercise of that discretion. That the Court of Appeal has so very carefully and thoroughly treated with that subject matter makes it otiose for the Court now to re-enter that same arena. Having said that, of course it is the case that not every one of the factors which then were of immediate concern to the Court of Appeal are the same factors which are of immediate concern to this Court. This is simply an exigency of the passage of time and the obviously instant-specific needs of an exercise of the relevant discretion on the occasion when a particular application is before the Court.

4 As a matter of convenience I intend to refer to the plaintiff in the Supreme Court proceedings, which is the respondent to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read L and W Developments Pty Limited v Alain Della and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWSC 309
Decision Date: 26 March 2004

CaseChat Overview and Summary

The matter before the Supreme Court of New South Wales involved L and W Developments Pty Limited as the plaintiff and Alain Della as the defendant. The dispute centred on the plaintiff's application to lift a stay on the proceedings, which had been imposed by the court pending the determination of related proceedings in the Industrial Relations Commission. The plaintiff contended that the defendant had breached undertakings to diligently prosecute the proceedings before the Industrial Relations Commission, warranting the lifting of the stay.

The court was required to determine whether the defendant had indeed breached the undertakings given to the court. This involved assessing the defendant's conduct in relation to the proceedings in the Industrial Relations Commission and whether there was sufficient evidence to support the plaintiff's claim that the stay should be lifted due to the defendant's lack of diligence. The court had to consider the terms of the undertakings, the defendant's actions in relation to those terms, and the impact of any breaches on the administration of justice.

In reaching its decision, the court found that the defendant had failed to meet the obligations outlined in the undertakings. The defendant had not acted with the requisite diligence in pursuing the related proceedings in the Industrial Relations Commission, leading to significant delays that adversely affected the plaintiff's ability to manage its affairs. The court concluded that the breach of the undertakings warranted the lifting of the stay on the proceedings. Consequently, the court granted the plaintiff's application to lift the stay, allowing the case to proceed in the Supreme Court.

The final orders of the court were that the stay imposed on the proceedings be lifted, enabling the case to continue in the Commercial List of the Supreme Court. The court emphasized the importance of parties fulfilling their obligations under any undertakings given to the court, highlighting the potential consequences of failing to do so.

Orders