Sedrak v Starr

[2010] NSWCA 228

New South Wales

Court of Appeal

CITATION:	Sedrak v Starr [2010] NSWCA 228
HEARING DATE(S):	23/08/10, 26/08/10, 27/08/10
JUDGMENT OF:	McColl JA at 1
EX TEMPORE JUDGMENT DATE:	27 August 2010
DECISION:	1.Notice of motion filed on 16 August 2010 dismissed. 2. Appellant to pay the respondent’s costs of and relating to the notice of motion on an indemnity basis.
CATCHWORDS:	PROCEDURE – civil – interlocutory issues – case management – preparation for appeal hearing – preparation, filing and service of Black and Blue Books – no issue of principle - COSTS – indemnity costs – where appellant’s conduct of proceedings has caused unreasonable delay and expense – where respondent filed notices of motion to ensure compliance with rules as to preparation of appeal – where no explanation for failure to comply with rules
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
PARTIES:	Maged Sedrak - Applicant Gavin Mark Starr - Respondent
FILE NUMBER(S):	CA 2009/298578
COUNSEL:	B Hogkinson SC - applicant on the motion
SOLICITORS:	Woods & Day Solicitors - applicant on the motion JN Legal Solicitors - respondent on the motion
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 5407/08
LOWER COURT JUDICIAL OFFICER:	Gzell J
LOWER COURT DATE OF DECISION:	18/9/09
LOWER COURT MEDIUM NEUTRAL CITATION:	[2009] NSWSC 996

CA 2009/298578

McCOLL JA

27 August 2010

Sedrak v Starr

Judgment ex tempore

1 McCOLL JA: Gavin Mark Starr, the respondent to an appeal brought by Maged Sedrak from a decision of Gzell J given on 5 November 2009, sought an order by notice of motion filed on 16 August 2010 pursuant to Uniform Civil Procedure Rules 2005 12.7(1) dismissing the appeal and dissolving a stay granted by the Court on 8 February 2010. UCPR 12.7(1) empowers the Court to order that proceedings be dismissed or make such order as the Court thinks fit if the plaintiff does not prosecute the proceedings. It applies to proceedings in the Court of Appeal (UCPR 51.1(3)) where “a reference to a plaintiff includes a reference to a person who commences proceedings in the Court (whether as an appellant or otherwise)”: UCPR 51.1(4).

2 The appeal is listed for hearing on Wednesday 1 September 2010.

3 On 8 February 2010, the day the stay was granted, the Court noted that the appellant undertook to the respondent to take all reasonable and necessary steps to prosecute the appeal expeditiously and that the stay was conditional on such conduct. The respondent complains that the appellant has breached that undertaking in failing to prepare, file and serve the Blue and Black appeal books.

4 When the motion was called on 23 August 2010, Mr B Hodgkinson of Senior Counsel, who appeared for the respondent/applicant informed the Court that the first draft of a Black Book had been received on 19 August 2010, while three volumes of Blue Books had been received late on the afternoon of Friday 20 August 2010. He complained of inadequacy…