Lauro v The Marble House of Australia Pty Ltd - [2010] SASC 211

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
LAURO v THE MARBLE HOUSE OF AUSTRALIA PTY LTD & ORS
[2010] SASC 211
Judgment of The Honourable Justice Anderson
16 July 2010
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION
Magistrate dismissed the appellant's claim for want of prosecution - whether magistrate properly exercised the discretion in this regard.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Magistrate dismissed appellant's claim for want of prosecution, and a costs order was made against him - claim was for breaches of Trade Practices Act 1974 (Cth) relating to quality of goods supplied, in particular a kitchen benchtop and breach of contract - appellant has a long history of medical illness preventing him from advancing the matter, delay and non-attendance at court hearings, as well as non-compliance with court orders - at the time the stay was granted, the appellant's time to bring the claim had not run out under the Limitation of Actions Act 1936 - whether discretion to dismiss was properly exercised - whether magistrate properly took into account the facts - whether magistrate properly assessed the prejudice to the appellant in dismissing the action - whether magistrate properly took account of other discretionary matters in favour of the appellant - whether propensity reasoning appropriate.
Held: Magistrate erred in exercise of discretion - magistrate failed to take into account sufficiently the appellant's health - propensity reasoning not appropriate - magistrate did not properly assess reasons for delays - magistrate erred in whether order for costs was complied with before claim dismissed - appeal allowed on terms as to payment of costs and return of kitchen benchtop.
Trade Practices Act 1974 (Cth); Limitation of Actions Act 1936 (SA); Magistrates Court (Civil) Rules 1992 (SA) r 3 and r 28, referred to.
House v The King (1936) 55 CLR 499, applied.
Lauro v Metro Investment Holdings Pty Ltd [2005] SADC 54, discussed.
Ulowski v Miller [1968] SASR 277; Beverage Bottlers (SA) Ltd (in liq) v Abode Enterprises Pty Ltd [2009] SASC 272; Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; White v Northern Territory of Australia [1989] NTSC 25, considered.

LAURO v THE MARBLE HOUSE OF AUSTRALIA PTY LTD & ORS
[2010] SASC 211
Magistrates Appeal: Civil
ANDERSON J.
Background facts

This is an appeal from the decision of a magistrate who dismissed the appellant’s claim for want of prosecution. In that decision the magistrate also dismissed the appellant’s application to amend the statement of claim and dismissed the appellant’s application to lift the stay of claim. The matter has a long and “tortuous existence” in the Magistrates Court as described by the magistrate. I agree.
The appellant, Mr Natale Lauro, appeals against the judgments dated 6 and 14 April 2010 (the latter judgment only dealing with the issue of costs).
In 2004 Mr Lauro entered into two contracts with the first respondent, The Marble House of Australia, for the sale and supply of goods. The directors of Marble House are the second and third respondents, Mr Luigi Scardigno and Mrs Maria Antonietta Scardigno.
The first contract was entered into on 31 July 2004. The contract was for the supply of domestic marble tiles to the appellant by the respondents. A deposit was paid for the tiles. However, the order was subsequently cancelled without the tiles being supplied. The deposit has not been refunded.
The second contract was also entered into on 31 July 2004 and was for the supply of a granite kitchen benchtop with servery top and splashbacks. A deposit was paid for the benchtop and the benchtop was supplied. It remains in the possession and control of the appellant. The appellant was dissatisfied with the quality of the benchtop and has not paid the balance payable on the second contract to the respondent. The deposit has since been refunded.
On 10 May 2006, the appellant filed a statement of claim alleging breaches of the Trade Practices Act 1974 (Cth) and breach of contract. The respondents brought an application to strike out the claim in June 2007 due to non-attendance at court hearings of the appellant. The magistrate stayed the claim and ordered the appellant to pay costs. In November 2007 the appellant applied to lift the stay and have the costs order set aside. The stay was lifted temporarily with conditions imposed; these conditions were not met by the appellant. In April 2009 the respondents had a warrant of sale issued against the appellant’s house in order to recover costs. The appellant filed an application to stay the warrant. At the same time, the respondents applied to dismiss the appellant’s claim for want of prosecution. In May 2009 another magistrate ordered a stay, sine die, relating to the execution of the warrant. The respondents applied for discharge of that stay and the stay was lifted in June 2009. The matter was subsequently remitted to the first magistrate for the hearing of the application to dismiss the claim. The judgment in that application is the subject of this appeal. In July 2009, the appellant finally paid the ordered costs.
Grounds of Appeal
The appellant raised 21 grounds of appeal in his Notice of Appeal, being:
1.The Learned Magistrate erred in dismissing the Plaintiff’s applications.
2.The Learned Magistrate erred in dismissing the Plaintiff’s claim for want of prosecution.
3.The Learned Magistrate erred in that he relied on and had regard to an incorrect fact, namely that the Plaintiff had not paid the Defendants’ costs as ordered by the Court.
4.The Learned Magistrate erred in that he failed to have regard to the Plaintiff’s payment of the Defendants’ costs as ordered by the Court.
5.The Learned Magistrate erred in having regard to, or placing excessive reliance on, other and unrelated proceedings in which the Plaintiff has been involved.
6.The Learned Magistrate erred in finding that the Defendants have been prejudiced.
7.The Learned Magistrate erred in failing to have regard or give sufficient weight to the prejudice to the Plaintiff in dismissing his claim.
8.The Learned Magistrate erred in failing to weigh the prejudice to the Plaintiff against the prejudice to the Defendants.
9.The Learned Magistrate erred in failing to find that the prejudice to the Plaintiff if his claim was dismissed outweighed any prejudice to the Defendants.
10.The Learned Magistrate erred in failing to find that in all of the circumstances the overall justice of the case required that the Plaintiff’s applications be allowed and the claim not be dismissed.
11.The Learned Magistrate erred in failing to have regard to, or give sufficient weight to, the effects of the Plaintiff’s ill health, including a quadruple by-pass operation.
12.The Learned Magistrate erred in failing to have regard to the finding by the District Court on 8 August 2008 that the Plaintiff was under a disability.
13.The Learned Magistrate erred in finding and having regard to that at one time the Plaintiff was prepared to amend his claim to a small claim.
14.The Learned Magistrate erred in failing to find and have regard to that the Plaintiff had been ready to prosecute the action since April 2009.
15.The Learned Magistrate erred in failing to have regard to, or give sufficient weight to, steps taken by the Plaintiff to prosecute the action, including instructing new solicitors and Counsel, seeking to amend the Particulars of Claim and to set a time table to trial.
16.The Learned Magistrate erred in failing to have regard to, or give sufficient weight to, the Plaintiff having substantially complied with the outstanding orders of the Court.
17.The Learned Magistrate erred in failing to have sufficient regard to the delay in hearing the matter occasioned by the Court between 17 May 2009 and 29 January 2010.
18.The Learned Magistrate erred in having regard to, or giving excessive weight to, the Plaintiff having been represented by three different lawyers.
19.The Learned Magistrate erred in finding and having regard to that the Plaintiff’s instructions to each of his lawyers was different.
20.The Learned Magistrate erred in finding and having regard to that the Plaintiff suffers “paranoia”.
21.The Learned Magistrate erred in finding and having regard to that the Plaintiff had failed to attend Court on “many” occasions and on “at least six directions hearings”.
In this appeal, the appellant asks that the judgments of 6 and 14 April 2010 be set aside and that the appellant’s claim be reinstated in the Magistrates Court. The appellant also seeks that the stay of the action be lifted and that the appellant have leave to amend his particulars of claim. The appellant seeks the costs of and incidental to the appeal, the respondents’ application to dismiss the appellant’s claim and the appellant’s application to amend his particulars of claim.
Submissions of the Appellant
Counsel for the appellant Mr Greg King, in seeking to interfere with the exercise of the magistrate’s discretion, relied on the principles in Ulowski v Miller [1968] SASR 277, setting out “five paramount matters” to which the court is to have regard in the exercise of its discretion.
Those matters are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant on the litigation.
Mr King submitted that the magistrate failed to properly balance the prejudice to the appellant against the prejudice to the respondents. He submitted that the onus of proof lies with the respondents to establish prejudice and that the respondents had failed to discharge the onus. He submitted that they had failed to provide any proof of real prejudice suffered, and especially given that the costs order that was made in the respondents’ favour was eventually complied with. Counsel further submitted that the proceedings should not have been dismissed for want of prosecution given that fresh proceedings could still be issued. He referred to the Limitation of Actions Act 1936 (SA) and to Beverage Bottlers (SA) Ltd (in liq) & Anor v Abode Enterprises Pty Ltd [2009] SASC 272 at [216]. Counsel submitted that any prejudice to the respondents would not be so great as to hinder the trial being conducted fairly. It was submitted that with respect to the benchtop, it is being kept in a sealed garage, and that an expert inspected it in 2007.
Mr King then submitted that the delays in the proceedings have not been so great as to amount to a want of prosecution, and that the magistrate did not properly take into account certain factors that led to the matter not proceeding. These factors were the appellant’s ill health, the fact that the appellant was unrepresented at times for financial reasons, and that some delays were in fact caused by the court. Counsel submitted that the delay in amending the statement of claim was due to the appellant awaiting the outcome of an application to dismiss. Further, it was submitted that there were only three or less court hearings where either the appellant or a representative of his did not attend; not the six which the magistrate found. Counsel relied upon Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 and Beverage Bottlers as supporting the proposition that any period of delay which is attributable to a stay by consent or acquiescence should be deducted from the total period of delay that is being considered. Counsel cited Kourakis J in Beverage Bottlers at [166]:
It is well accepted that the conduct of a defendant that amounts to waiver or acquiescence in the delay is a relevant circumstance.
The relevant period of acquiescence argued by counsel for the appellant was from 2 July 2007, when the stay was ordered by consent, until 29 April 2009 when the respondents filed an application to have the proceedings dismissed.
Counsel referred to the authorities of White v Northern Territory of Australia [1989] NTSC 25 and Beverage Bottlers in support of his argument that in other cases, even where significant delays have occurred, this has not necessarily proved fatal for the plaintiff.
With respect to the appellant’s health, his counsel submitted that the appellant had a coronary bypass operation on 4 September 2008 and by letter dated 9 February 2009 was deemed fit by cardiologist Dr Bradley to continue legal proceedings. Dr Bradley’s report stated:
MEDICAL REPORT
RE: Natale LAURO, DOB: 14.1.1949. UR735654
I reviewed Mr Lauro on 9^th February 2009 where he is making satisfactory progress following his coronary artery bypass grafting on the 4^th September 2008 complicated by a pulmonary embolus on 26^th September 2008. Apart from early morning hypertension, he is otherwise stable and I have adjusted his medication to try and treat this.
I believe that he is now fit to proceed with his legal proceedings. Since his appointment to see me was delayed from 12^th January 2009 to the 9^th February 2009 he has requested an additional 30 days to prepare his defence.
In other words, some of the reasons for delays in the past due to the appellant’s poor health will no longer be a factor in the future.
Mr King then submitted that the magistrate improperly had regard to an affidavit of Mr Antonio Tropeano dated 29 May 2009. Mr Tropeano is the solicitor acting for the respondents. To his affidavit Mr Tropeano attached numerous court records of various matters in which the appellant has been involved, sometimes as plaintiff and sometimes as defendant. This was apparently to establish a course of conduct similar to that which the respondents allege the appellant is again following in the instant case, namely, continual delay for spurious reasons. It was submitted that the court records attached were piecemeal and could not just be taken at face value. Counsel further submitted that the magistrate also erred in having regard to further extraneous and irrelevant matters, being that the appellant has at some time been prepared to amend his claim to a small claim, and the fact that the appellant has been represented by several different lawyers during the course of the action.
It was submitted that it was not open on the evidence for the magistrate to make findings that the appellant suffered from paranoia. The respondents hired a private investigator to carry out surveillance on the appellant and this caused the appellant distress. It was submitted that it was not open for the magistrate to find that the appellant’s instructions to each of the lawyers who represented him at various times differed.
Mr King submitted that the magistrate erred in finding that, at the time of the judgment, the appellant had not complied with the previous costs order. Counsel for the respondents agreed that costs had been paid, albeit after two attempts to set aside the costs order and nine months after costs were taxed. The magistrate was therefore wrong because the costs, albeit belatedly, were in fact paid.
Submissions of the Respondent
Counsel for the respondent Mr Lazarevich submitted that the magistrate was correct to look at the appellant’s conduct in other proceedings in the exercise of his discretion. It was submitted that the court records in other actions involving the appellant are a matter of public record which do not involve hearsay or speculation. It was submitted the records show a pattern of behaviour involving similar delays and refusals to comply with court orders allowing parties to obtain expert’s reports, and also adjournments due to health issues. Counsel submitted that the appellant’s past behaviour means the court can have no confidence in the appellant complying with orders in the future. It was submitted that as it was the appellant seeking the magistrate’s discretion, the magistrate was entitled to inform himself of the appellant’s past conduct. This submission is really based on propensity reasoning.
Mr Lazarevich submitted that the real prejudice suffered by the respondent is the continuing delay. He queried whether the matter will ever actually reach trial. He also argued that the obvious consequences of the delay to the respondents, because of increased difficulties in defending the action, were relevant. He pointed to the likely deterioration of the kitchen benchtop. The quality of the benchtop is an issue raised by the appellant. He submitted that the respondents have been denied access to the benchtop for the purpose of getting an expert’s appraisal. It was also submitted that the proposed amendments to the statement of claim would further prejudice the respondents, as the amended amount claimed is substantially greater than originally claimed.
Mr Lazarevich submitted that the 2009 application for dismissal must be considered in light of the 2007 application to strike out the appellant’s claim, after a lack of meaningful activity and non-attendances by the appellant throughout 2006. He conceded that the appellant may not have been absent from as many as six court hearings but submitted it was at least four. Counsel submitted that at the time of the judgment, the appellant would not commit to his pleadings as representing his case, and that there was, at that time, still a query as to whether the appellant took issue with the quality of the goods. It was submitted that despite this inadequacy in the pleadings, the appellant did not take action to amend his claim for an extensive period of time.
Counsel for the respondents agreed that the appellant did suffer health problems in the past but submitted that those problems did not cover the entire four-year period of the action, during which time little to no progress has been made. With respect to the appellant’s current state of health, counsel for the respondents submitted that the magistrate did not have sufficiently detailed or consistent evidence before him upon which to make findings as to whether the appellant was or was not fit to continue legal proceedings. It was submitted that the magistrate was not in possession of the letter dated 9 February 2009 of cardiologist Dr Bradley stating that the appellant was “fit to proceed”. It was further submitted that by affidavit dated 17 May 2009 the appellant stated that he was still experiencing significant difficulties with his health.
Mr Lazarevich submitted that it was open for the magistrate to make the comment that the appellant was paranoid based on the appellant’s conduct at directions hearings, and the material contained in his affidavit of 14 June 2007. That comment regarding paranoia derives from a statement in a judgment of Judge Bright in the District Court. His Honour in that matter simply stated, “The plaintiff is reported to have some paranoid tendencies”: see Lauro v Metro Investments Holdings Pty Ltd [2005] SADC 54 at [17]. The magistrate in this matter appears to have adopted that comment by the judge and transposed it to these proceedings.
Finally, in its written submissions the respondent submitted that rule 3 and rule 28 of the Magistrates Court (Civil) Rules 1992 (SA) were relied upon to support the argument that as this action was not prosecuted expeditiously the magistrate was correct in dismissing the case.
Considerations

In deciding this appeal I have regard to the principles in Ulowski v Miller [1968] SASR 277 and Beverage Bottlers and of course House v The King (1936) 55 CLR 499 at 504. I must first consider whether the magistrate, in the exercise of his discretion, acted upon a wrong principle, allowed extraneous or irrelevant matters to guide him, mistook the facts, or did not take into account a material consideration.
The magistrate made mistakes of fact in finding that the appellant had not complied with the costs order, and as to the number of non-attendances by the appellant. His error about the payment of costs is important.
With regard to the non-attendances at court hearings by the appellant, it may have been three or four but not as many as six. This is a minor point and I do not consider it particularly relevant to the appeal. Even if the magistrate erred in taking too many non-attendances into account, whether there were three or four of them, or six as he said, does not much matter in the overall scheme of his consideration of the appellant’s conduct.
Much of the appellant’s explanation for the delay in the proceedings related to his health problems. In considering delay, the magistrate was not concerned so much with the state of the appellant’s health but rather the non-compliance with court orders designed to further the action, and the changes in direction of the pleadings. It is conceded by the respondent that the appellant has suffered difficulties with his health. I consider that the magistrate did not properly assess the consequences of the appellant’s health had on the conduct of the proceedings.
There is medical evidence to support the fact that Mr Lauro’s health has caused or contributed to his inability to take relevant steps in the matter. Attached to affidavits of Natale Lauro filed on 18 May 2009 and 8 June 2010 are bundles of letters from Dr Giordano and Dr Bradley. Relevant parts are summarised below.
30/4/2007Letter of Dr Giordano:
“Please consider my discussion by phone today in regard to management of your back pain and sciatica.
…
Please consider my strong advice for hospital admission and appropriate orthopaedic treatment.”
31/5/1007Medical certificate of Dr Giordano:
“… the patient is unable to attend to any legal matters and court proceedings pending further medical review on 2/7/2007.”
2/7/2007Medical certificate of Dr Giordano:
“… the patient is unable to attend to any legal matters and court proceedings pending further medical review on 28/8/2007.”
22/10/2007Letter of Dr Bradley:
“This man’s cardiac condition remains unchanged from my last note in 2006. Undue stress should be avoided.”
10/1/2008Medical certificate of Dr Giordano:
“I have formed the view that Mr Lauro is unfit to attend legal proceedings on the 14^th and 15^th of January 2008. Furthermore he is unfit to attend court matters till review by Dr Julie Bradley (specialist cardiologist) on the 11/2/2000 …”
25/8/2008Letter of Dr Bradley:
“… he required coronary artery bypass grafting”
“… he had an episode of severe chest pain associated with ECG changes which necessitated admission to the Royal Adelaide Hospital”
“It generally takes about three months to recover from coronary artery bypass grafting so I anticipate that the earliest possible time he would appear in court will be in about four months.”
25/9/2008Letter of Dr Bradley:
“Mr Lauro underwent coronary artery bypass grafting on the 4^th September 2008.”
“I expect that he should be well enough to appear in court early next year.”
“Mr Lauro is having trouble reading.”
“I expect that he will need about a further six weeks to recover sufficiently to be able to read and consider legal documents.”
2/10.2008Letter of Dr Bradley:
Repeated letter of 25/9/2008/
30/10/2008Letter of Dr Bradley:
“I recommend that he be left to recuperate for the rest of the year and would hope that he would be able to read his legal documents early in the New Year.”
4/9/2006Letter of Dr Bradley:
“… excessive stress should be avoided”
23/9/2006Medical certificate of Dr Giordano:
“He will be unfit to attend to any legal proceedings from 25/9/2006 to 30/9/2006 inclusive.”
16/5/2007Medical certificate of Dr Poasan:
“In wheelchair / unable to walk”
18/2/2008Letter of Dr Bradley:
“It is unwise for him to appear in court for the next 2–3 months until he is more stable.”
9/2/2009Letter of Dr Bradley:
“Apart from early morning hypertension, he is otherwise stable.”
“I believe that he is now fit to proceed with his legal proceedings.”
I find that the magistrate was incorrect to take into account what I call the appellant’s “unrelated litigation history”. This relates to the appellant’s conduct in other legal proceedings not before the magistrate and in various courts. It appears the magistrate used the court records by way of propensity reasoning both to confirm his opinion of the appellant’s conduct to date and to form his view that the appellant is therefore unlikely to comply with future court orders, or prosecute the case expeditiously. The magistrate said at [19]:
[19]If this was the only court action Mr Lauro had been involved in, I may be inclined to grant his requests, but this is not the only matter in which he has been a litigant. He has been involved in many cases in this court and in the District Court, and in those matters he has a record of delays, refusals to comply with court orders, changes of legal representation, failure to appear, and many applications to amend his pleadings. I have no confidence at all he would act any differently in the future.
In other words, it was the conduct in other unrelated court actions which tipped the balance in the mind of the magistrate. The court records do not go behind the recording of the formal order to any extent.
I consider that in this matter it was not correct to use propensity reasoning to say that the appellant would not act any differently in the future. I agree, however, with the magistrate that even without considering the court records in the other matters, the appellant has, in this matter, conducted himself rather poorly to date and it is difficult to have confidence that he will comply with court orders in future. His past conduct can be explained, at least to some extent, by medical evidence and it is my view that it was not given sufficient weight by the magistrate.
It is not necessary to make a finding about the magistrate’s comment relating to the “plaintiff’s paranoia”. In my view, this was a passing comment and probably did not have any great impact on the magistrate’s judgment. As I have pointed out, it was merely a comment by the magistrate and something previously noted by a judge in another jurisdiction.
Conclusion
Based on the above findings, I find that the magistrate, in the terms of House v The King, allowed extraneous or irrelevant matters to influence his discretion. He also made some errors of fact. The error relating to the non-payment of costs may have significantly influenced the exercise of his discretion on the question of prejudice. In my view he did not properly assess the appellant’s medical condition based on objective evidence from doctors.
I will now consider the respective prejudices to the parties in the exercise of my discretion in deciding the appeal.
The respondents claimed that the appellant’s lack of commitment to his initial pleadings causes them a prejudice, as they do not know the case they have to meet. I do not consider there is much force in that submission as the appellant has put forward his proposed amendments. The appellant’s proposed further amended statement of claim exhibited to the affidavit of Mr Mules dated 24 December 2009 claims the amount of $40,000. The current amended claim is for $30,000. In the proposed amendments, the appellant alleges misrepresentation and unconscionable conduct. The quality of the benchtop remains an issue for the appellant. In my view, the changes to and the increase in the claim is a prejudice to the respondents since it is more than what was previously claimed, but this is not an unusual turn of events in litigation and certainly not a substantial prejudice. The other matters are matters of law and generally the court would allow such amendments unless specific prejudice can be shown.
Mr King indicated that should the appellant be successful in this appeal, his client would be prepared to allow the respondents access to the benchtop to inspect it. To this date, the benchtop has been stored by the appellant and the respondents have not had access to it. This is in defiance of court orders. Access to the benchtop is an important point because the quality of the benchtop goes to a material issue in the appellant’s claim. Should the appellant continue to refuse access, it could cause prejudice to the respondents. I consider that the respondents should be allowed access to the benchtop forthwith. The quality of the benchtop as at the time of the contract has to be determined at trial. That is a matter of the evidence to be led at the trial and therefore immediate access is required so that the evidence can be obtained.
Any substantial prejudice to the respondents with respect to the various delays has now been remedied by the appellant’s compliance with the costs order. Any other likely prejudice is really speculative. However, I must take into account the appellant’s conduct in pursuing this matter when I consider what prejudice there is likely to be to the respondents.
I should make it clear that I have the utmost sympathy for the frustrating position the magistrate was placed in. He was entitled to believe that the appellant was attempting to delay the proceedings. The appellant’s attitude to the litigation has been less than satisfactory. However, the respective prejudices come down to the appellant being thrown out of court versus matters for which the respondent can be at least compensated by costs and orders designed to expedite this matter.
I intend making orders to be enforced in the Magistrates Court to get this matter to trial without any substantial further delays
If I were to dismiss this appeal, the appellant could file fresh proceedings, as time will not run out until 31 July 2010. If I allow this appeal and allow the appellant’s amendments and make a further order as to costs thrown away to date, any prejudice to the respondents is no different from what it would face if the appellant files fresh proceedings using the proposed further amended statement of claim as proposed. That would seem to be a waste of resources and money. This has not influenced my decision and is merely a pragmatic consideration.
In summary therefore I think that the discretion of the magistrate has miscarried. He erred in the factual aspect of the payment of costs thrown away. He failed to take into account all the matters which accounted for the delay and in particular the state of the appellant’s health. He wrongly allowed propensity reasoning to influence his decision and in the circumstances the appeal should be allowed but on terms.
Orders
I allow the appeal. The judgment of the magistrate delivered on 6 April 2010 is set aside.
I order that:
1.The appellant be allowed to amend his statement of claim in accordance with the proposed further amended statement of claim, this to be done within 7 days. Any amended defence to be filed within a further 14 days.
2.The appellant to allow the respondents immediate access to the benchtop for the purposes of obtaining an expert report. The benchtop then to be stored until trial by the respondent’s expert or by the respondents’ solicitors.
3.The appellant to pay the respondents’ further costs thrown away of the proceedings to date in the Magistrates Court. I will hear the parties on the amount of those costs. The costs are to be paid within 21 days. There is no need to interfere with the order made by the magistrate as to costs.
4.The action is stayed until orders 2 and 3 have been complied with.
5.Upon compliance with orders 2 and 3, the stay be lifted and the matter proceed to trial on the merits before another magistrate.
6.If either orders 2 or 3 are not complied with then the action be struck out.
I will hear the parties as to costs in relation to the costs of the appeal to this Court, but it is my view that each party should bear their own costs.