Mizzi Pty Ltd v Meredith - [2009] VSC 367

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7543 of 1998

MIZZI PTY LTD (ACN 084 591 122)
(in its capacity as Trustee of the Townsend Unit Trust)

and

MANTONELLA PTY LTD (ACN 069 012 531)

Plaintiffs

GREGORY POLLARD MEREDITH

and

NATIONAL AUSTRALIA BANK LIMITED
(ACN 004 044 937)

Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2009
DATE OF JUDGMENT	8 September 2009
CASE MAY BE CITED AS:	Mizzi Pty Ltd v Meredith
MEDIUM NEUTRAL CITATION:	[2009] VSC 367

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Practice and Procedure – order for inspection of discovered documents – self-executing order – proceeding dismissed for non-compliance – whether plaintiffs ought to be relieved from consequence of non-compliance with inspection order – want of prosecution – whether plaintiffs guilty of inordinate delay – whether prejudice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms L Simons	Lesley Simons & Associates
For the Defendants	Mr C Scerri QC and Mr E Woodward	Minter Ellison

HIS HONOUR:

Before the court are two appeals from orders made by Daly AsJ:

(1)An appeal of the defendants by notice filed on 15 May 2008 against an order made on 9 May 2008. The order dismissed the defendants’ application brought by summons filed on 26 October 2007 seeking to strike out the claim for want of prosecution.
(2)An appeal of the plaintiffs by notice dated 22 May 2009 against an order made on 18 May 2009. The order dismissed the plaintiffs’ application brought by summons filed on 26 September 2008 seeking an order that the self-executing order of 18 July 2008 dismissing the plaintiffs’ claim be set aside.

The Plaintiffs’ Claims

The claims of the plaintiffs in this case are a little complicated. The following is a summary of them as appears in their second further amended statement of claim dated 24 July 2002.

In 1992 and 1993 each of two companies, Thermeda Pty Ltd[1] and Duropa Nominees Pty Ltd, respectively, granted to the secondnamed defendant, National Australia Bank Ltd, a debenture charge over their assets.[2] At that time, and up to July 1995 Thermeda and Duropa owned certain plant and equipment used in the manufacture of aluminium and zinc diecast components.[3]
[1]This company was earlier called Consolidated Diecaster Pty Ltd. The date of name change does not appear and I shall refer to it simply as Thermeda.
[2]Statement of claim paras 16, 17.
[3]Statement of claim para 11.

The diecast business in which the plant and equipment was used was operated by Thermeda from 1992 to June 1994,[4] by a company called Pinoak Pty Ltd from June 1994 to September 1995 and, thereafter, by Townsend & Parker Pty Ltd as trustee for the Townsend Unit Trust.[5] The premises from which the diecast business was conducted were situate at 320 Lower Dandenong Road, Braeside.
[4]Statement of claim para 10.
[5]Statement of claim para 14.

By sale agreement dated 5 June 1995 Thermeda and Duropa sold the plant and equipment to the secondnamed…

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.

Continue reading Mizzi Pty Ltd v Meredith

Details

AGLC: Mizzi Pty Ltd v Meredith [2009] VSC 367
Case: [2009] VSC 367
Decision Date: 8 September 2009

CaseChat Overview and Summary

The matter of Mizzi Pty Ltd versus Meredith arose in the Federal Court of Australia, where the central issue was the plaintiffs' failure to comply with a court-ordered inspection of discovered documents. This non-compliance led to the dismissal of the proceeding, and the plaintiffs sought relief from this consequence, arguing that they were not at fault and that no prejudice resulted from the delay. The court was tasked with determining whether the plaintiffs should be excused from the consequences of their non-compliance and whether their delay in prosecution was inordinate.

The legal issues before the court included the interpretation of the order for inspection and whether it was self-executing, the extent to which the plaintiffs' delay in compliance constituted a want of prosecution, and whether such delay resulted in prejudice to the defendants. The court also considered whether the plaintiffs were justified in their delay and whether they were entitled to relief from the consequences of their non-compliance with the inspection order. The plaintiffs argued that they had not been at fault and that no prejudice had ensued from the delay.

The court found that the order for inspection was self-executing and that the plaintiffs' failure to comply with it constituted a want of prosecution. The court considered whether the plaintiffs' delay was inordinate and whether it had caused any prejudice to the defendants. After evaluating the circumstances, the court concluded that the plaintiffs had not demonstrated a justification for their delay and that the defendants had suffered prejudice as a result. Consequently, the court denied the plaintiffs' application for relief from the consequences of their non-compliance, and the proceeding was dismissed. The court did not make any specific orders beyond the dismissal of the proceeding.

Orders