Macarthur Projects Pty Ltd v Reform Projects Pty Ltd

[2022] NSWSC 1621

Supreme Court

New South Wales

Medium Neutral Citation:

Macarthur Projects Pty Ltd v Reform Projects Pty Ltd [2022] NSWSC 1621

Hearing dates:

16 November 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) The Defendant have leave to amend orders 1 and 2 of the Notice of Motion dated 20 October 2022 to substitute the date of 23 November 2021 for the date of 11 May 2021.

(2) Pursuant to rule 42.41(3) of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiffs' amended statement of claim filed on 23 November 2021 be dismissed.

(3) Each of the parties to bear their own costs.

Catchwords:

CIVIL PROCEDURE – Dismissal – Uniform Civil Procedure Rules r 42.41(3) – where plaintiffs have not proceeded appropriately in the prosecution of the proceedings they have brought – Amended Statement of Claim dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 42.41

Category:

Principal judgment

Parties:

Macarthur Projects Pty Ltd (in liq) (ACN 602 242 080) (First Plaintiff)
The Gosford Pty Ltd (in receivership) (ABN 17 630 253 557) (Second Plaintiff)
Reform Projects Pty Ltd (ABN 58 616 145 156) (Defendant)

Representation:

Counsel:
D Byrne (Defendant)

Solicitors:
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2021/00131739

EX TEMPORE Judgment (REVISED)

1. The Court sits in its Duty List in consideration of a Notice of Motion filed on 20 October 2022 by the first defendant in proceedings commenced by two plaintiffs – Macarthur Projects Pty Ltd and The Gosford Pty Ltd. It is unnecessary to set out the circumstances of those proceedings except that they proceed by way of a case number in this Court of 2021/00131739.

2. The defendant moved upon a motion today in which various orders were sought. However, for present purposes of today’s proceedings I need refer only to order 1 of the relief claimed. In that respect the defendant sought, pursuant to rr 42.21(3) and/or 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiffs Amended Statement of Claim filed on 11 May 2021 be dismissed.

3. When the matter was called today no appearance was entered for the second plaintiff. I note in that respect that, whilst lawyers have been retained for the purposes of that corporation's receivership or alternatively its directorship, no appearance was entered when the matter was called. The defendant mentioned the appearance of the first plaintiff. That position may be explained by reference to the Short Minutes of Order that have been filed in Court by which the first plaintiff consents to the proceedings being dismissed with no order as to costs.

4. In a commendable approach to efficiency to the proceedings, Mr Byrne of counsel who appeared for the defendant sought to confine the grounds relied upon for the first prayer for relief in the motion, namely the dismissal of the amended statement of claim pursuant to r 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW). The basis for that application was clearly established in the evidence before the Court. The affidavit of Mr Yacoub of 20 October 2022 discloses that orders were made for security for costs and that those orders have not been satisfied. They have remained unsatisfied for a considerable period of time. In substance, the plaintiffs have not proceeded appropriately in the prosecution of the proceedings they have brought.

5. In all those circumstances then it is appropriate that the relief claimed as manifested in the Short Minutes of Order before the Court viz-a-viz the relief claimed in order 1 of the Notice of Motion be granted.

6. To be absolutely clear, the application is granted under r 42.21(3) upon the basis relied upon by the defendant in the proceedings this morning.

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Decision last updated: 28 November 2022