Lawrence v Lawrence

[2023] NSWSC 1051

Supreme Court

New South Wales

Medium Neutral Citation:

Lawrence v Lawrence [2023] NSWSC 1051

Hearing dates:

29 August 2023

Date of orders:

29 August 2023

Decision date:

31 August 2023

Jurisdiction:

Equity - Real Property List

Before:

McGrath J

Decision:

(1) Pursuant to rule 36.16 of the Uniform Civil Procedure Rules, the orders made on 18 August 2022 dismissing the proceedings and ordering the plaintiffs to pay the defendant’s costs of the proceedings are set aside.

(2) The plaintiffs are to pay the defendant’s costs of the notice of motion filed 22 August 2023 and the amended notice of motion filed 23 August 2023, including the hearing on 29 August 2023.

(3) The matter is listed for further directions in the Real Property List on Friday, 1 September 2023.

Catchwords:

PRACTICE AND PROCEDURE – judgments and orders – proceedings dismissed for want of due dispatch – set aside in the interests of justice

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 36.16

Category:

Principal judgment

Parties:

Susan Lawrence (First Plaintiff)
Ian Kenneth Lawrence (Second Plaintiff)
Stewart Gregory Lawrence (Defendant)

Representation:

Counsel:
D Eardley (Plaintiffs)
H Fielder (Defendant)

Solicitors:
Smyth Turner Wall (First and Second Plaintiffs)
Tranter Lawyers (Defendant)

File Number(s):

2022/00311904

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. Today I have heard an amended notice of motion filed 23 August 2023 by the plaintiffs seeking orders that the orders made on 18 August 2023 by Peden J dismissing the proceedings and that the plaintiffs pay the defendant’s costs of the proceedings be set aside and that the proceedings be restored to the list for further directions.

2. The dismissal and costs orders were made after the plaintiffs failed to comply with the timetable which had been directed on 5 May 2023 by Peden J for the service of the plaintiffs’ lay and expert evidence by 16 June 2023, failed to respond to the defendant’s enquiries about the non-compliance and failed to attend the directions hearing, at least initially, on 18 August 2023 to explain why there had been non-compliance with the timetable.

3. The proceedings were dismissed for want of due dispatch under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) on terms that the plaintiffs pay the defendant’s costs of the proceedings. The dismissal was also made on terms that any notice of motion seeking to vacate those orders was required to be filed by 23 August 2023, with that motion returnable before me today on the condition that the plaintiffs pay the defendant’s costs thrown away by the appearance in the Real Property List on 18 August 2023.

4. The first plaintiff, Susan Lawrence, swore an affidavit on 22 August 2023 which was filed by the plaintiffs on that day. That affidavit appears to address the substantive matters which are the subject of the dispute in the proceedings. As a result, it appears that the plaintiffs have, at least in part, now filed their evidence in the proceedings.

5. In support of the amended notice of motion before me today are affidavits of Graham Thomas Wall sworn 23 and 28 August 2023, who is the principal of Smythe Turner Wall, the solicitors for the plaintiffs in the proceedings. Annexed to Mr Wall's affidavit sworn 28 August 2023 is a letter dated 28 August 2023 from Smythe Turner Wall to the defendant’s solicitors, Tranter Lawyers. In that letter, Mr Wall states that the defendant’s costs in the amount of $1,700 have been paid, a matter which is common ground, therefore meeting the terms of the orders made by Peden J on 18 August 2023. In his affidavits, Mr Wall also provides an explanation as to why the plaintiffs have not adhered to the previous timetable for their evidence, outlining serious health issues which he has experienced since February 2023, which have affected his ability to work.

6. Accordingly, the plaintiffs have now served a substantive lay affidavit on which they intend to rely in the proceedings, thereby remedying their default. The plaintiffs have paid the costs thrown away by the appearance on 18 August 2023. The plaintiffs have also given an explanation for their failure to meet the previous directions of the Court.

7. Also, before me in relation to the amended notice of motion, the defendant read the affidavit of Randeep Singh sworn 25 August 2023. While that affidavit catalogues the plaintiffs' various regrettable defaults in prosecuting their claim, the defendant has not provided any evidence of particular prejudice to them of the dismissal and costs orders of 18 August 2023 being set aside. The defendant neither consents nor opposes the orders sought in the amended notice of motion.

8. In these circumstances, in the interests of justice, I propose to make the following orders:

1. Pursuant to rule 36.16 of the Uniform Civil Procedure Rules, the orders made on 18 August 2022 dismissing the proceedings and ordering the plaintiffs to pay the defendant’s costs of the proceedings are set aside.

2. The plaintiffs are to pay the defendant’s costs of the notice of motion filed 22 August 2023 and the amended notice of motion filed 23 August 2023, including the hearing on 29 August 2023.

3. The matter is listed for further directions in the Real Property List on Friday, 1 September 2023.

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Decision last updated: 31 August 2023