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Re Punters Show Pty Limited

Re Punters Show Pty Limited

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Case Copied 17 May 2017 79 min read

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Punters Show Pty Limited [2017] NSWSC 605
Hearing dates: 20 March, 27–28 April 2017, last written submissions 10 May 2017
Decision date: 17 May 2017
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Order that the order made on 13 March 2017 dismissing the proceedings be vacated and that the Plaintiffs’ Statement of Claim be struck out. Order that the Plaintiffs pay the Defendants’ costs thrown away by the defence of the Statement of Claim and any amendment of the Originating Process and Statement of Claim, as agreed or as assessed. Order that the Plaintiffs pay the Defendants’ costs of and incidental to the Interlocutory Processes returnable on 13 March 2017 up to and including that date, including the costs of and incidental to the hearing on 13 March 2017, on an indemnity basis, as agreed or as assessed. There be no order as to the costs of the hearing on 20 March 2017, that part of the hearing on 27 April 2017 relating to this application or the hearing on 28 April 2017.

Catchwords:
PROCEDURE – Application to vacate orders that proceedings be dismissed which were stayed when made – where Plaintiffs did not attend directions hearing and hearing of interlocutory application – where pleading embarrassing – where Plaintiffs seek to replead their case – where detriment to Defendants sufficiently addressed by an order for costs – whether order that proceedings be dismissed should be vacated – whether Statement of Claim should be struck out
PRODEDURE – Costs – Departing from the general rule – whether Plaintiffs should pay costs thrown away by striking out of Statement of Claim and costs of hearings they did not attend on an indemnity basis – whether order should be made as to costs of Defendants’ application that proceedings be dismissed – whether costs should be payable forthwith – whether costs should be payable on a gross sum basis
Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56–58, 61, 98
- Corporations Act 2001 (Cth), ss 180–183, 233, 237, 249F
- Legal Profession Uniform Law (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 14.28, 15.3, 42.1, 42.2, 42.7(2), 52.5
Cases Cited: - Airservices Australia v Jeppeson Sanderson Inc [2006] FCA 906
- Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 14) (unreported, 18 August 1995)
- Banque Commerciale SA (en liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
- Bi v Mourad [2010] NSWCA 17
- Brasington v Overton Investments Pty Ltd [2001] FCA 571
- Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225
- Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77
- Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1
- Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334; (2015) 90 NSWLR 595
- Gunns…

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.

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Details

Case: [2017] NSWSC 605
Decision Date: 17 May 2017

CaseChat Overview and Summary

The case of Re Punters Show Pty Limited involved an application to vacate orders dismissing proceedings. The plaintiffs had failed to attend a directions hearing and the hearing of an interlocutory application, resulting in the proceedings being stayed. The plaintiffs subsequently sought to replead their case. The defendants argued that the detriment caused by the plaintiffs' absence was sufficiently addressed by an order for costs, and they sought to have the dismissal order vacated and the statement of claim struck out. The court was required to determine whether the dismissal order should be vacated and if the statement of claim should be struck out. The court also had to consider whether the plaintiffs should be ordered to pay the costs of the dismissed proceedings and the costs of the hearing of the application to vacate on an indemnity basis, whether the costs should be payable forthwith, and if they should be payable on a gross sum basis.

The court considered the circumstances surrounding the plaintiffs' absence from the hearings and the pleadings. It noted that the plaintiffs' failure to attend the hearings was an irregularity that warranted the proceedings being stayed. However, the court also recognised that the plaintiffs had sought to replead their case, indicating a willingness to address the deficiencies in their original statement of claim. The court found that the detriment to the defendants was adequately addressed by an order for costs, and thus, the dismissal order should be vacated. The court was also satisfied that the pleadings were not so embarrassing as to warrant striking out the statement of claim. The court ordered that the proceedings be reinstated and that the plaintiffs pay the defendants' costs of the dismissed proceedings and the costs of the hearing of the application to vacate on an indemnity basis. The court further directed that the costs be payable forthwith and on a gross sum basis.

In conclusion, the court vacated the order dismissing the proceedings and denied the defendants' application to strike out the statement of claim. The plaintiffs were ordered to pay the defendants' costs of the dismissed proceedings and the costs of the hearing of the application to vacate on an indemnity basis. The costs were to be payable forthwith and on a gross sum basis. The proceedings were reinstated, allowing the plaintiffs an opportunity to replead their case.

Orders