RPS Freightways Pty Ltd v Singh - [2018] NSWDC 283

District Court

New South Wales

Medium Neutral Citation: RPS Freightways Pty Ltd v Singh [2018] NSWDC 283
Hearing dates: 26 September 2018
Date of orders: 26 September 2018
Decision date: 26 September 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) These proceedings stood over part-heard to 12:00pm 27 September 2018 before Gibson DCJ.
(2) Costs of today reserved.
(3) The solicitors for the defendant, De Marco Lawyers of 794A Pascoe Vale Rd, Glenroy VIC 3046, are to attend court at midday 27 September 2018 to seek leave to withdraw from the proceedings pursuant to UCPR r 7.29 and to show cause why they should not pay the costs of today and such other costs as may be occasioned by their purported withdrawal from acting made on or after 31 August 2018. If there is no appearance, orders will be made in their absence.
(4) A copy of these orders is to be provided by the court to the solicitors for the defendant, together with a copy of the reasons for decision of Gibson DCJ.

Catchwords: PRACTICE AND PROCEDURE – case management of hearing – defendant seeks adjournment on the first day of the hearing after his solicitor filed a Notice of Intention of Ceasing to Act less than 28 days before the hearing and without complying with UCPR r 7.29 in seeking leave
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62
Contracts Review Act 1980 (NSW), s 7
Uniform Civil Procedure Rules 2005 (NSW), r 7.29
Cases Cited: Battersby v McIvor [2012] NSWSC 1137
Bendigo and Adelaide Bank Limited v Jaeger (District Court of New South Wales, Letherbarrow SC DCJ, 23 August 2017)
Cha v Oh (No 21) [2009] NSWDC 130
In the matter of S M Project Developments Pty Ltd (in liquidation) [2017] NSWSC 1010
Nuclear Utility Technology and Environmental Corporation Inc v Australian Broadcasting Corporation (New South Wales Supreme Court, McCallum J, 28 April 2008)
Plenty v Goodwin (1986) 67 ALR 26
Super 1000 Pty Ltd v Pacific General Securities Pty Ltd [2007] NSWSC 171
Category: Procedural and other rulings
Parties: Plaintiff: RPS Freightways Pty Ltd
Defendant: Amandeep Singh
Representation:
Counsel:
Plaintiff: Mr A Cheema
Defendant: Mr A Singh (in person)
Solicitors:
Plaintiff: Morgan Conley
Defendant: De Marco Lawyers

File Number(s): 2017/262809
Publication restriction: None

Judgment

Introduction

The events leading to the application made before me in court today happen far too often in this court. First, proceedings are conducted diligently by one side, whereas the opponent fails to comply. Next, the solicitor for the non-compliant party withdraws from the case in less than the time allotted under r 7.29 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), but fails to appear in court to seek leave to withdraw.
On 25 June 2018, these proceedings were fixed for hearing for three days, commencing today. The plaintiff, represented by Mr Cheema of counsel, tells me his client is ready to proceed. However, the defendant, Mr Singh, appearing for himself with the assistance of his wife,…

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 RPS Freightways Pty Ltd v Singh

Details

AGLC: RPS Freightways Pty Ltd v Singh [2018] NSWDC 283
Case: [2018] NSWDC 283
Decision Date: 26 September 2018

CaseChat Overview and Summary

RPS Freightways Pty Ltd initiated proceedings against Mr Singh, the defendant, in the County Court of Victoria. The matter pertains to a dispute regarding alleged breaches of contract and the defendant's failure to comply with certain contractual obligations. The defendant's solicitors, De Marco Lawyers, filed a Notice of Intention of Ceasing to Act less than 28 days before the scheduled hearing date, without seeking leave as required by UCPR r 7.29. This led to a request for an adjournment on the first day of the hearing.

The legal issues before the court were whether the defendant's solicitors were entitled to an adjournment and whether they should be allowed to withdraw from the proceedings without facing any costs consequences. The court considered the strict requirements of UCPR r 7.29 and the potential prejudice to the plaintiff if the adjournment was granted without a showing of good cause. The court also had to determine the appropriate costs orders if the solicitors were permitted to withdraw.

Gibson DCJ found that the defendant's solicitors had not complied with the necessary procedural requirements in seeking leave to withdraw. The court held that the solicitors' failure to seek leave and the timing of the Notice of Intention of Ceasing to Act did not constitute good cause for an adjournment. Consequently, the court stood over the proceedings part-heard and ordered the solicitors to attend court to seek leave to withdraw and show cause why they should not be liable for costs. The court reserved the decision on costs and directed that copies of the orders and reasons for decision be provided to the defendant's solicitors.

Orders

Orders of the court

(1) These proceedings stood over part-heard to 12:00pm 27 September 2018 before Gibson DCJ.

(2) Costs of today reserved.

(3) The solicitors for the defendant, De Marco Lawyers of 794A Pascoe Vale Rd, Glenroy VIC 3046, are to attend court at midday 27 September 2018 to seek leave to withdraw from the proceedings pursuant to UCPR r 7.29 and to show cause why they should not pay the costs of today and such other costs as may be occasioned by their purported withdrawal from acting made on or after 31 August 2018. If there is no appearance, orders will be made in their absence.

(4) A copy of these orders is to be provided by the court to the solicitors for the defendant, together with a copy of the reasons for decision of Gibson DCJ.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	RPS Freightways Pty Ltd v Singh [2018] NSWDC 283
Hearing dates:	26 September 2018
Date of orders:	26 September 2018
Decision date:	26 September 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) These proceedings stood over part-heard to 12:00pm 27 September 2018 before Gibson DCJ. (2) Costs of today reserved. (3) The solicitors for the defendant, De Marco Lawyers of 794A Pascoe Vale Rd, Glenroy VIC 3046, are to attend court at midday 27 September 2018 to seek leave to withdraw from the proceedings pursuant to UCPR r 7.29 and to show cause why they should not pay the costs of today and such other costs as may be occasioned by their purported withdrawal from acting made on or after 31 August 2018. If there is no appearance, orders will be made in their absence. (4) A copy of these orders is to be provided by the court to the solicitors for the defendant, together with a copy of the reasons for decision of Gibson DCJ.
Catchwords:	PRACTICE AND PROCEDURE – case management of hearing – defendant seeks adjournment on the first day of the hearing after his solicitor filed a Notice of Intention of Ceasing to Act less than 28 days before the hearing and without complying with UCPR r 7.29 in seeking leave
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Contracts Review Act 1980 (NSW), s 7 Uniform Civil Procedure Rules 2005 (NSW), r 7.29
Cases Cited:	Battersby v McIvor [2012] NSWSC 1137 Bendigo and Adelaide Bank Limited v Jaeger (District Court of New South Wales, Letherbarrow SC DCJ, 23 August 2017) Cha v Oh (No 21) [2009] NSWDC 130 In the matter of S M Project Developments Pty Ltd (in liquidation) [2017] NSWSC 1010 Nuclear Utility Technology and Environmental Corporation Inc v Australian Broadcasting Corporation (New South Wales Supreme Court, McCallum J, 28 April 2008) Plenty v Goodwin (1986) 67 ALR 26 Super 1000 Pty Ltd v Pacific General Securities Pty Ltd [2007] NSWSC 171
Category:	Procedural and other rulings
Parties:	Plaintiff: RPS Freightways Pty Ltd Defendant: Amandeep Singh
Representation:	Counsel: Plaintiff: Mr A Cheema Defendant: Mr A Singh (in person) Solicitors: Plaintiff: Morgan Conley Defendant: De Marco Lawyers
File Number(s):	2017/262809
Publication restriction:	None