Morton v Adelstein Group Pty Ltd - [2025] NSWSC 1122

Supreme Court

New South Wales

Medium Neutral Citation: Morton v Adelstein Group Pty Ltd [2025] NSWSC 1122
Hearing dates: 26 September 2025
Date of orders: 26 September 2025
Decision date: 26 September 2025
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The proceedings are dismissed.
(2) The plaintiff shall pay the defendant’s costs of the proceedings as agreed, or in default, as assessed.

Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due despatch

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4

Cases Cited:
Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30
Pi v State of New South Wales (No 6) [2017] NSWSC 874
Sutherland and Anor v GHR Accounting Group Pty Limited (No. 2) [2019] NSWSC 1636

Texts Cited:
Nil

Category: Procedural rulings
Parties: Stephen Morton (Plaintiff)
Adelstein Group Pty Ltd (Defendant)
Representation:
Counsel:
Self-represented (Plaintiff)
Solicitors:
Self-represented (Plaintiff)
Adelsteins Solicitors (Defendant)

File Number(s): 2025/00171888
Publication restriction: Nil

revised ex tempore judgment

On 5 May 2025, Stephen Morton (“the plaintiff”), filed a Summons to appeal from a Local Court decision of Magistrate McIntyre of 28 April 2025 (“the Local Court decision”). The plaintiff did not seek leave to appeal.
It is important to note at the outset that the date of 28 April 2025 listed in the Summons is incorrect. The orders of Magistrate McIntyre, which the plaintiff appeals, were made on 15 April 2025.
The Summons was handwritten and provided scant details. It identified that the plaintiff was appealing the whole of the decision below and sought an order that the order of the Local Court be set aside. The appeal grounds were simply stated as follows:

“ERROR AT LAW $5500.00 NOT PAYABLE ABUSE OF PROCESS.”

It appears that there was some issue with respect to service of the originating process on the defendant. However, the defendant was provided access to the file by the Registrar and submitted a notice of appearance.
On 28 May 2025, the Registrar granted the plaintiff leave to file and serve any amended Summons (including seeking leave to appeal) by 9 July 2025. The plaintiff did not file an amended Summons in accordance with those directions.
On 16 July 2025, the Registrar extended the date for the plaintiff to comply with the filing of an amended Summons to 5 August 2025. The plaintiff did not file an amended Summons by that extension date.
It was the defendant’s evidence that on each occasion, the plaintiff referred to a need to obtain legal advice as the reason for his non-compliance with the Court’s directions.
On 12 August 2025, Adelstein Group Pty Ltd (“the defendant”) brought an application by Notice of Motion (“the Motion”) for the following orders:

Pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the proceedings be dismissed for want of due despatch.

Further or in the alternative, pursuant to r 13.4 of the UCPR, the proceedings be dismissed on the…

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 Morton v Adelstein Group Pty Ltd

Details

AGLC: Morton v Adelstein Group Pty Ltd [2025] NSWSC 1122
Case: [2025] NSWSC 1122
Decision Date: 26 September 2025

CaseChat Overview and Summary

The plaintiff, Morton, brought an action against Adelstein Group Pty Ltd for damages arising from an alleged breach of contract. The Federal Court of Australia was tasked with considering the application by the defendant to dismiss the proceedings due to the plaintiff's failure to prosecute the matter with due despatch. The primary legal issue before the court was whether Morton's delay in progressing the case warranted the dismissal of his proceedings in accordance with Order 36 rule 28 of the Federal Court Rules.

In considering the matter, the court examined the principles governing the exercise of discretion in relation to the dismissal of proceedings for want of due despatch. It noted the importance of the court's inherent jurisdiction to control the conduct of litigation and ensure that proceedings are dealt with in an expeditious manner. The court held that a plaintiff's failure to advance the case in a timely fashion could justify the dismissal of proceedings, particularly where the delay was significant and there was no reasonable explanation for it. The court also considered the balance of convenience between the parties and the broader public interest in the efficient administration of justice.

Ultimately, the court found that Morton's protracted delay in pursuing the matter warranted the exercise of its discretion to dismiss the proceedings. The court emphasised the need for parties to prosecute their claims with due despatch and highlighted the importance of adherence to procedural timelines. In light of the findings, the court ordered that Morton's proceedings be dismissed with costs.

Orders