McClure v Lam

[2025] NSWSC 883

Supreme Court

New South Wales

Medium Neutral Citation:

McClure v Lam [2025] NSWSC 883

Hearing dates:

1 August 2025

Date of orders:

1 August 2025

Decision date:

01 August 2025

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   Vacate the hearing commencing on 25 August 2025.

(2)   The defendant is to pay the plaintiff’s costs arising out of the vacation of the hearing date.

(3)   The plaintiff is to file and serve any notice of motion on which she intends to rely seeking an advanced ruling on the evidence by 15 August 2025.

(4)   The plaintiff is to serve any evidence on which the plaintiff intends to rely in support of that motion by 15 August 2025.

(5)   The defendant is to serve any evidence on which he intends to rely in response to the motion by 22 August 2025.

(6)   The motion is listed for hearing on 26 August 2025 with a half day estimate.

(7)   The matter is listed for further directions before Cavanagh J on 7 November 2025.

Catchwords:

CIVIL PROCEDURE – court administration – case management – failure to comply with case management orders – cost orders arising from the need to vacate a hearing date due to non-compliance with case management orders

Legislation Cited:

Nil

Cases Cited:

Nil

Category:

Procedural rulings

Parties:

Rachel McClure (Plaintiff)
Alan Lam (Defendant)

Representation:

Counsel:
E Romaniuk (Plaintiff)
A Horvath (Defendant)

Solicitors:
Martin Street Lawyers (Plaintiff)
Avant Law (Defendant)

File Number(s):

2020/00202054

Publication restriction:

Nil

REVISED EX TEMPORE JUDGMENT

1. In this matter the parties come before the Court at the request of the defendant in circumstances in which the defendant has failed to comply with earlier case management orders in a significant way. Despite being ordered to file an evidentiary statement of the defendant, obviously a very important piece of evidence, by 14 March 2025, the defendant only served the report in late July. Similarly, despite being ordered to file a defence to the amended statement of claim in 2024, the defendant only filed its amended defence in 2025.

2. Mr Romaniuk of senior counsel appears for the plaintiff and Ms Horvath of the senior counsel appears for the defendant.

3. Ms Horvath frankly explains that the delay has been unacceptable, but relies on the evidence of her instructing solicitor in that regard. I accept the evidence of the instructing solicitor as to the reasons for the delay.

4. I note there has been a change of counsel and, obviously, a change of strategy. However, these orders were made in February, and the whole intention of case management is to ensure these things do not happen, that is, to ensure that perhaps two or three months before the hearing everything is attended to, other than perhaps the conclave of experts.

5. In this case the result of the defendant’s conduct is that the defendant is serving its primary evidence less than a month before the hearing, leaving the plaintiff little opportunity to respond. In particular Mr Romaniuk says he wants to file a motion seeking advance rulings on some of the statements made by the defendant, including whether they might be tendency.

6. I accept Mr Romaniuk’s statements that it is not possible for the plaintiff to prepare a response to the defendant’s evidentiary statement, and, in those circumstances it will be necessary again to vacate the hearing date.

7. The reason for the vacation is clearly the failure of the defendant to comply with earlier orders, and, in those circumstances, I order that the defendant pay the plaintiff’s costs arising from the vacation of the hearing date, subject only to the fact that I will list a motion which the plaintiff seeks to file for hearing on 26 August 2025.

8. The orders I make are:

1. Vacate the hearing commencing on 25 August 2025.

2. The defendant is to pay the plaintiff’s costs arising out of the vacation of the hearing date.

3. The plaintiff is to file and serve any notice of motion on which she intends to rely seeking an advanced ruling on the evidence by 15 August 2025.

4. The plaintiff is to serve any evidence on which the plaintiff intends to rely in support of that motion by 15 August 2025.

5. The defendant is to serve any evidence on which he intends to rely in response to the motion by 22 August 2025.

6. The motion is listed for hearing on 26 August 2025 with a half day estimate.

7. The matter is listed for further directions before Cavanagh J on 7 November 2025.

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Decision last updated: 07 August 2025