Shaw v Official Trustee in Bankruptcy
[1999] NSWSC 258
•26 March 1999
CITATION: Shaw v Official Trustee in Bankruptcy [1999] NSWSC 258 CURRENT JURISDICTION: Equity FILE NUMBER(S): 1746/99 HEARING DATE(S): 24, 25 & 26 March 1999 JUDGMENT DATE:
26 March 1999PARTIES :
George Thomas Shaw (P)
Official Trustee in Bankruptcy (D1)
Westpac Banking Corporation (D2)JUDGMENT OF: Hamilton J
COUNSEL : Plaintiff did not appear
J White, Solicitor (D1)
M F Daniels, Solicitor (D2)SOLICITORS: In person (P)
Kemp Strang (D1)
Dunhill Madden Butler (D2)CATCHWORDS: PROCEDURE [113] - Supreme Court - New South Wales - Practice under Supreme Court Rules - Judgments and orders - Form of order where plaintiff commences to prosecute claim at hearing but absents himself during its course. ACTS CITED: Supreme Court Rules 1970 Pt 34 r 5 DECISION: Judgment entered for defendants.
PMcM:AC:2
~26/03/99 1
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONHAMILTON J
FRIDAY, 26 MARCH 1999
1746/99 GEORGE THOMAS SHAW v OFFICIAL TRUSTEE IN BANKRUPTCY & ANOR
JUDGMENT
HIS HONOUR:
1 It is noted that the plaintiff does not appear although called outside the Court. The plaintiff was present in Court yesterday when the matter was adjourned to today. The plaintiff yesterday was represented by his son, Mr Thomas Shaw, by leave of the Court, and with the consent of both defendants. A further adjournment was sought on the plaintiff's behalf and refused. Mr Thomas Shaw then said he would take no further part in the proceedings and that, "We are not going to put any arguments and not going to fight this case". Although they did not participate further in the proceedings yesterday, he and his father continued to be present in Court and were present when the matter was stood over until today. Mr George Shaw did not appear when called outside the Court this morning. Mr Thomas Shaw has been present in Court this morning during the hearing of these proceedings, but has not sought to participate and has not participated in them.2 The defendants ask for judgment. I think the appropriate order is that there be judgment for the defendants on the plaintiff's claim: see SCR Pt 34 r 5 and cases collected at [34.5.3] in Ritchie’s Supreme Court Procedure. Mr White, solicitor for the first defendant, asks for the Official Trustee’s costs on an indemnity basis. This is on the basis that the present caveat is in identical form to another caveat which the Court earlier found baseless. I understand the strength of his claim but I think it better in the circumstances not to accede to it. However, both defendants should have their costs of the proceedings on the ordinary basis. The orders of the Court will be: Judgment for the defendants on the plaintiff's claim. I order the plaintiff to pay the defendants' costs of the proceedings.
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