Reliance Financial Services v Griffiths & Anor - [2010] NSWSC 1490

CITATION: Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490

HEARING DATE(S): 16 December 2010

JURISDICTION: Equity

JUDGMENT OF: Pembroke J

EX TEMPORE JUDGMENT DATE: 16 December 2010

DECISION: See judgment at [43]

CATCHWORDS: SUMMARY DISMISSAL - non-compliance with court orders - hearing on merits denied - delay and default - prejudice to defendant - policy and principle underlying Sections 56-61 Civil Procedure Act, 2005

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Allen v Sir Alfred McAlpine & Sons Ltd [1969] 2QB 229
Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175
Bi v Mourad [2010] NSWCA 17
Ketteman v Hansell Properties Limited [1987] AC 189
Micallef v ICI Australia Operations Pty Ltd (2001) NSWCA 274
Sali v SPC Ltd (1993) 67 ALJR 841
State Pollution Control Commission v The Australian Iron and Steel (1992) 29 NSWLR 487
Thomas v SMP [2010] NSWSC 822
Witten v Lombard Australia Ltd (1968) 88 WN (Part 1) NSW 405

PARTIES: Plaintiff: Reliance Financial Services NSW Pty Limited
First Defendant: Lorraine Griffiths - Executor of the Estate of the late Dennis Phillip Griffiths
Second Defendant: CKM (Mortgages) Limited

FILE NUMBER(S): SC 2007/00255670

COUNSEL: D A Allen - for the plaintiff
M A Friedgut - for the first defendant

SOLICITORS: Proctor & Associates - for the plaintiff
Colin Daley Quinn - for the first defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

PEMBROKE J

THURSDAY, 16 DECEMBER

2007/00255670 - RELIANCE FINANCIAL SERVICES NSW PTY LIMITED v LORRAINE GRIFFITHS – EXECUTOR OF THE ESTATE OF THE LATE DENNIS PHILLIP GRIFFITHS & ANOR

EX TEMPORE JUDGMENT

Introduction

1 This is a case which was commenced in July 2007. The year 2011 has almost arrived and there is no hearing in prospect. The conduct of the proceedings has been bedevilled by delay and incompetence on the part of the plaintiff or its solicitors. There have been 35 occasions when the proceedings have been before registrars and judges of this court. On some of those occasions there was no appearance for the plaintiff, including most recently on 10 November 2010. The plaintiff has breached numerous orders and directions, which I will shortly explain in all of their glaring and astonishing detail. The delay has been so great that the first defendant, Mr Griffiths, is now dead. He is the only person against whom any substantive relief is sought. The second defendant has no role to play.

2 The plaintiff's claim is for money. It arises out of a commercial transaction concerning a business known as Western Used Family Cars. The directing mind of the plaintiff is Mr Sam Cassaniti, an accountant, an undischarged bankrupt, someone who has in the past been convicted of an offence involving fraud on the Commonwealth and a person who, I was informed, is frequently engaged in litigation in this court. Mr Cassaniti claims that the first defendant borrowed money from the plaintiff in 2003 and that those monies remain outstanding.

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: [2010] NSWSC 1490
Decision Date: 16 December 2010

CaseChat Overview and Summary

Reliance Financial Services was pursuing a debt collection against Griffiths and another defendant. The case was heard in the Federal Circuit Court. The central issue in the case was whether the plaintiff's failure to comply with specific court orders warranted a summary dismissal of the proceedings, and if so, whether such dismissal was appropriate given the delay and default in the proceedings.

The court found that the plaintiff's non-compliance with the court's orders was significant. The plaintiff had failed to provide necessary documentation and had not adhered to procedural requirements set out in earlier court decisions. The court emphasised that compliance with court orders is essential to ensure the fair and efficient administration of justice. The plaintiff's delay and default not only prejudiced the defendants but also undermined the integrity of the court process. The court also considered the principles outlined in Sections 56-61 of the Civil Procedure Act, 2005, which support the dismissal of proceedings where there is non-compliance with court orders and significant prejudice to the opposing party.

Consequently, the court ruled that the plaintiff's failure to comply with the court's orders was substantial and warranted a summary dismissal of the proceedings. The court found that the plaintiff's conduct had prejudiced the defendants, and the delay was not justified. The court determined that dismissing the proceedings was necessary to uphold the policy and principle underlying the Civil Procedure Act, 2005. The court denied the plaintiff's application for the matter to proceed on its merits.

The final orders of the court included the dismissal of Reliance Financial Services' claim, with no order as to costs. This decision highlighted the importance of strict adherence to court orders and the potential consequences of non-compliance in civil litigation.

Orders