Sommerville Kalgoorlie Pty Ltd - ACN 154878869 v Gullan Pty Ltd - ACN 054024332

[2022] WASC 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SOMMERVILLE KALGOORLIE PTY LTD - ACN 154878869 -v- GULLAN PTY LTD - ACN 054024332 [2022] WASC 115

CORAM:   HALL J

HEARD:   22 MARCH 2022

DELIVERED          :   8 APRIL 2022

FILE NO/S:   CIV 1087 of 2021

BETWEEN:   SOMMERVILLE KALGOORLIE PTY LTD - ACN 154878869

Plaintiff

AND

GULLAN PTY LTD - ACN 054024332

Defendant

Catchwords:

Practice and procedure - Appeal from Registrar - Application to set aside default judgment - Judgment the result of a springing order - Failure by legal practitioner to provide discovery and available dates for mediation by due date - Prejudice to plaintiff as compared to prejudice to the defendant - Whether defendant 'hoist with his own petard'

Legislation:

Rules of the Supreme Court 1971 (WA) O 60A r 4

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Plaintiff	:	H R Robinson
Defendant	:	N P van Hattem

Solicitors:

Plaintiff	:	Haydn Robinson
Defendant	:	King’s Park Legal (as at 22 March 2022)  Hopgood Ganim (as of 8 April 2022)

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172

Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175

CVW Group Holdings Pty Ltd v Addison [2011] WASC 267

MTQ Holdings Pty Ltd v Lynch [2007] WASC 49

Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2021] WASC 14

The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASC 93, 30 WAR 398

HALL J:

Introduction

1. The plaintiff, in opposing this appeal against the triggering of a springing order that was made by consent, submits that 'the defendant is hoist on its own petard'.  The reference is, presumably, to the speech by Hamlet in Act 3 Scene 4 of the play by Shakespeare.  Hamlet in fact says 'for 'tis the sport to have the enginer hoist with his own petard'.  The phrase refers to a person being blown up by his own bomb.  It connotes an ironic reversal of fortune.  For reasons that I will explain, whilst the analogy is superficially attractive, it does not make allowance for the reasons for non-compliance with the springing order.

2. Hamlet's speech refers to a journey he, Rosencrantz and Guildenstern are to make to England to visit the English King.  Rosencrantz and Guildenstern carry a letter from Hamlet's uncle, Claudius, requesting that Hamlet be killed. Hamlet intercepts and substitutes the letter with one requesting that Rosencrantz and Guildenstern be killed.  The irony is that Rosencrantz and Guildenstern will bear the substituted letter little realising that in delivering it they will not bring about Hamlet's demise, but their own.

3. In this case, the springing order was made by consent following a number of failures by the defendant to comply with previous orders of the court.  In these circumstances, the plaintiff submits that the defendant has no legitimate grounds to complain when its most recent failure to comply resulted in the springing order taking effect and judgment being entered. 

4. In response the defendant submits that it is necessary to take into account the nature of the orders not complied with and the reason for the non‑compliance.  It is submitted that the non‑compliance was, essentially, the failure to provide unavailable dates for mediation.  The reason for the non‑compliance was an oversight by the defendant's solicitor, which the solicitor has fully accepted.  Further, the defendant says that some of the earlier non‑compliance with previous orders and extensions of time related to the hospitalisation of its sole director and were not due to a contumacious attitude to the orders of the court.

5. I have concluded that the failure to comply was not due to failings on the part of the defendant.  In fact, the defendant did all that it could reasonably be expected to do to ensure that the orders were complied with.  It provided its solicitor the relevant information with sufficient time for the orders to be complied with.  This was not a problem - or, to continue with the analogy, a petard - of the defendant's own making.  The prejudice to the plaintiff if the appeal is allowed is outweighed by the prejudice to the defendant of losing the ability to defend a case in which the plaintiff seeks, amongst other things, the construction and leasing of a substantial commercial building. 

Background

1. These proceedings relate to an agreement for the lease of commercial premises in Kalgoorlie.  The agreement was entered into in February 2018 between the plaintiff (as proposed lessee) and the defendant (as proposed lessor).  The agreement related to premises that were yet to be built on land that the defendant owned (the land).[1] 

   [1] Affidavit of Lyndon Edward Dyson sworn 16 June 2020 [25] - [26].

2. Lyndon Edward Dyson is a director of the plaintiff.  Ian Frederick Johnson is the sole director and secretary of the defendant.  From about January 2015, Mr Dyson and Mr Johnson discussed the possibility of establishing a pharmacy as one component of a commercial development of the land.  The two men agreed that they would both participate in any redevelopment of the land.  Subsequently, Mr Johnson decided that he would prefer to retain responsibility for the redevelopment and to lease to the plaintiff that part that was intended to be occupied by the new pharmacy.  The plaintiff's participation would be as a tenant with an option to buy the leased premises.  It was in this context that the agreement for lease was signed in 2018.[2] 

   [2] Affidavit of Lyndon Edward Dyson sworn 16 June 2020, [5] - [12]

3. The agreement for lease terminated on non‑fulfilment of a condition subsequent contained within it.  The relevant conditions are found in cl 2 of the agreement for lease.  That clause reads as follows:[3]

   [3] Affidavit of Lyndon Edward Dyson sworn 16 June 2020, Annexure LED7.

   2.1Conditions subsequent

   This deed is subject to and conditional upon on or before the Condition Date:

   (a)the Landlord obtaining from every applicable Authority, all necessary statutory, building and other approvals required for the construction of the Development and its permitted use as specified in this deed;

   (b)the Landlord obtaining finance approval to complete the Development, with any such finance approval to be obtained within 60 days of the fulfilment of the condition in clause (a); and

   (c)any terms or conditions imposed by an Authority on the statutory, building and other approvals required for the construction of the Development are acceptable to the Landlord in its sole discretion.

   2.2Benefit of Conditions

   The Conditions are for the benefit of the Landlord.

   2.3Satisfaction of Conditions

   The Landlord will use its best reasonable endeavours in relation to the satisfaction of the Conditions and notify the Tenant as soon as reasonably practicable after each is satisfied.

   2.4Non‑fulfilment of Conditions

   If any of the Conditions are not satisfied on or before the Condition Date then, unless the party benefiting from the Condition waives the necessity for that Condition to be satisfied:

   (a)this deed will terminate;

   (b)any moneys paid by the Tenant to the Landlord under this deed will be repaid together will all accrued interest less any duty and taxes payable on accrued interest;

   (c)each party shall be released from its obligations to perform further this deed; and

   (d)no party will have any claim against any other party.

4. Progress on the redevelopment was slow, and in January 2020 Mr Johnson informed Mr Dyson that although the development was still proceeding, he did not intend to grant the pharmacy lease to the plaintiff but instead proposed to grant a lease to another pharmacy business.  This position appeared to assume that the agreement for lease had been terminated.  Whether or not it had been is the principal issue in the proceedings.[4]

   [4] Affidavit of Lyndon Edward Dyson sworn 16 June 2020, [40].

5. The defendant's position is that, as a consequence of the conditions subsequent not being fulfilled, the agreement for lease was terminated.  The plaintiff disputes that position and, in particular, claims that insofar as the defendant had not obtained finance it was due to the defendant failing to use its best endeavours to do so (in accordance with cl 2.3).[5] 

   [5] ts 22/3/2022, 19.

6. The plaintiff lodged a caveat over the land to protect its interests and on 19 January 2021 an application to extend that caveat was granted by Master Sanderson; Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2021] WASC 14. The Master found that, at least at that stage, there was a paucity of evidence as to what efforts the defendant had made to obtain finance and that it was arguable the defendant was in breach of its obligations under cl 2.1(b). He concluded that there was a serious question to be tried as to whether or not the defendant was in breach of its contractual obligation to use its best endeavours to obtain finance, and that the plaintiff was entitled to lodge a caveat to protect an interest created by the agreement for lease. The Master concluded his reasons by stating that (at [20]):

   Clearly this is a matter which should be progressed to trial as soon as possible.  The matters at issue are very narrow.  On publication of these reasons the parties ought confer with a view to agreeing a program to allow for a trial at the earliest possible date.

7. Pursuant to orders made by Master Sanderson on 29 January 2021, the writ of summons was to be filed by 15 February 2021 and the defendant was then to provide unavailable dates for mediation by 22 February 2021.[6] 

   [6] Affidavit of Haydn Ross Robinson sworn 18 March 2022, Attachment HRR1 (Order of Master Sanderson 29/01/2021).

8. The plaintiff filed the writ of summons on 15 February 2021.  The attached statement of claim alleges that the agreement for lease is a continuing agreement which requires the defendant to complete the development and grant a lease to the plaintiff.  It seeks the following relief:[7]

   1.A declaration that the agreement for lease continues with full force and effect.

   2.An order for specific performance by the defendant of its obligations under the agreement for lease to complete the development and confirm the grant of a lease to the plaintiff.

   3.An order that the plaintiff have liberty to apply about the enforcement of order 2.

   4.An order that the defendant pay compensation to the plaintiff for breaches of the agreement for lease.

   5.An order that the defendant pay compensation to the plaintiff for breaches of the Australian Consumer Law.

   6.Interest on compensation under such terms as the court deems fit; and

   7.An order that the defendant pay indemnity costs to the plaintiff, alternatively party and party costs. 

   [7] Statement of Claim dated 15 February 2021, 11 - 12.

9. The defendant failed to provide unavailable dates for mediation by 22 February 2021: the dates were provided on 26 February 2021.  On 8 March 2021, the plaintiff provided the combined unavailable dates to the court and a mediation was listed for 11 May 2021.  That mediation did not proceed because the defendant did not file a defence by 1 March 2021, as required.[8] 

   [8] Affidavit of Haydn Ross Robinson sworn 18 March 2022, [8].

10. On 8 April 2021, Registrar Griffin made orders, by consent of the parties, for the parties to provide discovery by 20 April 2021, inspection by 4 May 2021 and orders relating to mediation.  On 20 April 2021, the plaintiff filed and served discovery in compliance with those orders.  The defendant did not comply with the order to provide discovery.[9]

    [9] Orders of Registrar Griffin dated 8 April 2021; Affidavit of Haydn Ross Robinson sworn 18 March 2022, [13] - [16].

11. On 20 April 2021, the solicitor for the defendant sent an email to the solicitor for the plaintiff advising that Mr Johnson was currently in hospital being assessed for a potential back operation.  The email further stated that once there was further information about Mr Johnson's discharge date the solicitor would provide a minute of proposed consent orders extending the time for the provision of discovery by the defendant.[10]

    [10] Affidavit of Timothy James Poli sworn 15 March 2022, [5]; attachment TJP-2.

12. On 5 May 2021, there was an exchange of emails between the solicitors in which the defendant's solicitor advised that Mr Johnson had undergone back surgery, had been discharged from hospital the previous Saturday and was confined to bed rest for at least two weeks.  A proposed consent order extending the time for compliance with the defendant's discovery obligation was agreed.[11] 

    [11] Affidavit of Timothy James Poli sworn 15 March 2022, [7].

13. On 5 May 2021, Registrar Griffin made orders, by consent of the parties, to: extend the date for the defendant's discovery to 24 May 2021; vacate the mediation listed for 11 May 2021; and relist the mediation at a later date.[12]

    [12] Orders of Registrar Griffin dated 5 May 2021.

14. On 9 August 2021, Registrar Griffin made orders, by consent of the parties, to extend the date for the defendant's discovery to 17 August 2021 and also extending the date for the provision of unavailable dates for mediation to the same date.  These orders had a springing component.[13]

    [13] Orders of Registrar Griffin dated 9 August 2021.

15. The defendant provided discovery on 16 August 2021. On 17 August 2021, the plaintiff requested further and better discovery and an electronic copy of the defendant's discovered documents. The defendant requested a copy of the plaintiff's discovered documents by Dropbox on the same date.  The defendant also provided unavailable dates for mediation.[14] 

    [14] Affidavit of Timothy James Poli sworn 15 March 2022, [16] - [17].

Relevant orders for the purposes of this appeal

1. On 1 November 2021, Registrar Griffin made further orders, by consent of the parties.  These are the relevant orders for the purposes of this appeal.  The orders recite the defendant's previous failures to comply in the following terms:[15]

   The defendant, having failed to comply with:

   (a)order 2 made on 8 April 2021 for discovery on affidavit by 20 April 2021, extended to 24 May 2021 by order 1 made on 5 May 2021, further extended to 17 August 2021 by order 2 made on 9 August 2021;

   (b)order 3 made on 8 April 2021 for inspection of documents by 4 May 2021 extended to 7 June 2021 by order 4 made on 5 May 2021 further extended to 17 August 2021 by order 2 made on 9 August 2021; and

   (c)order 3 made on 5 May 2021 for unavailable dates for mediation to be provided by 24 May 2021 extended to 17 August 2021 by order 2 made on 9 August 2021.

   [15] Orders of Registrar Griffin dated 1 November 2021.

2. The orders of 1 November 2021 then provided as follows:

   1.Unless the defendant complies with orders (a), (b) and (c) above by 9 November 2021 it is ordered that:

   (a)the defendant perform its obligations under the agreement for lease made on 29/8/2018 between the plaintiff, defendant and Lyndon Edward Dyson relating to the development of Lot 22 on deposited plan 406845, being the land in Certificate of Title volume 2907 folio 555 being situated at 21 O'Connor Street, Sommerville by completing the development specified in the agreement for lease;

   (b)upon practical completion of the development the lease to the plaintiff of part of the development commence;

   (c)the defendant pay compensation to the plaintiff for breaches of the agreement for lease to be assessed;

   (d)the defendant pay compensation to the plaintiff for breaches of the Australian consumer law to be assessed;

   (e)the defendant pay interest to the plaintiff on compensation upon such terms as the court deems fit;

   (f)the plaintiff have liberty to apply about their enforcement orders 1(a) to (e); and

   (g)the defendant pay all costs of this action incurred by the plaintiff except insofar as they are of an unreasonable amount or have been unreasonably incurred so that subject to the above exceptions the plaintiff is completely indemnified by the defendant for its costs.

   2.The defendant immediately pay to the plaintiff the costs of these orders and orders made on 9 August in the amount of $990.00.

   3.The case management conference on 2 November 2021 be vacated.

3. On 10 November 2021, the defendant served supplementary discovery on the plaintiff's solicitors and provided a Dropbox for the supplementary discovered documents.[16]  Accordingly, the defendant was one day late in meeting the requirement to complete discovery.  The plaintiff also submits that the supplementary discovery was still incomplete insofar as it did not include written applications for finance.  The defendant disputes this and says that all relevant documents have been discovered and any further evidence relating to the efforts to obtain finance will be by way of oral testimony. 

   [16] Affidavit of Timothy James Poli sworn 15 March 2022, [25] - [29].

4. The plaintiff accepts that inspection did not occur by 9 November 2021 but says that that is because the defendant's discovery was, allegedly, incomplete.  Nothing turns on any failure to comply with the inspection aspect of the orders. 

5. The third aspect of the orders was the requirement to provide unavailable dates for mediation by 9 November 2021.  The defendant’s solicitor did not provide any unavailable dates to the plaintiff's solicitor by 9 November 2021 as required.  The defendant's solicitor provided this information on 23 December 2021.[17]

   [17] Affidavit of Timothy James Poli sworn 15 March 2022, [35].

6. Accordingly, the failure to comply with the consent orders of 1 November 2021 consisted of a failure to provide supplementary discovery (that discovery being provided one day late) and a failure to provide unavailable dates for mediation by the due date.

7. On 23 December 2021, the associate to Registrar Griffin sent an email to both solicitors, noting that the affidavit of discovery had been filed late and inquiring whether the other orders had been complied with.  The email stated that if there had been non-compliance the order of 1 November 2021 was self‑executing.  The solicitors were asked to respond by close of business the following day.  The solicitor for the plaintiff responded, noting that unavailable dates had not been provided and contesting that there had been breach of the orders and that the springing component had become effective. The defendant's solicitor responded by providing information regarding his client's unavailable dates.[18]

   [18] Affidavit of Timothy James Poli sworn 15 March 2022, [34] - [35].

8. On 24 December 2021 Registrar Griffin made orders noting the non-compliance and giving effect to the springing order made on 1 November 2021.  The effect of this was to enter judgment for the plaintiff and order the relief sought in the writ.[19]

   [19] Orders of Registrar Griffin dated 24 December 2021.

9. On 10 January 2022 the solicitor for the defendant became aware of the orders made on 24 December 2021 and obtained instructions from the defendant to commence this appeal.

Reasons for non-compliance  

1. The solicitor for the defendant, Mr Timothy Poli, has filed an affidavit in which he accepts that the blame for the non-compliance is entirely his.[20]  Mr Poli specifically accepts that he was to blame for failing to produce the affidavit and documents for supplementary discovery by 9 November 2021.  He attended at the defendant's office and obtained the relevant documents prior to 1 November 2021.  He prepared a list of the documents and an affidavit for swearing by Mr Johnson. However he became aware on 9 November 2021 that Mr Johnson was unable to sign the affidavit as he was travelling from Kalgoorlie to Perth. Mr Poli accepts that he failed to check Mr Johnson's availability prior to that time.  He sent an email to the plaintiff's solicitor on 9 November 2021 offering to provide the list and documents, with the affidavit to be filed on the following day.  He received no reply to that email.  The affidavit was sworn, filed and served on 10 November 2021.

   [20] Affidavit of Timothy James Poli sworn 15 March 2022.

1. Mr Poli also states that he received an email from Mr Johnson's personal assistant on 8 November 2021 stating that Mr Johnson had no unavailable dates for mediation (as at that time travel was restricted due to the COVID pandemic).  He states that in the days immediately preceding 10 November 2021 his attention was principally focussed on completing and filing the affidavit of discovery and he overlooked the need to provide the information regarding unavailable dates.  After the affidavit was filed, he mistakenly thought that everything that needed to be done pursuant to the 1 November 2021 orders had been done.  He heard nothing more until 23 December 2021, when he saw the email of the plaintiff's solicitor responding to the associate to Registrar Griffin.  At that time his office was closed for the Christmas break and in looking at the email he failed to scroll down and see the content of the email from the associate.  It was for this reason that his response was only to provide the relevant unavailable dates.[21]

   [21] Affidavit of Timothy James Poli sworn 15 March 2022, [29] - [39].

2. At the hearing of the appeal counsel for the defendant informed the court that Mr Poli accepted that, in the circumstances, it was appropriate that he personally pay the plaintiff's costs of this application, and an order in those terms was suggested.  Further, counsel advised that the defendant had instructed new solicitors and Mr Poli would no longer be acting for the defendant following the appeal. The new solicitors have since filed a notice of change of representation and they are noted in the heading of these reasons.[22]

   [22] ts 22/03/2022, 2 - 4.

The appeal notice

1. The defendant filed a Notice of Appeal filed on 20 January 2022 against the orders made by Registrar Griffin on 24 December 2021.  There is a single ground of appeal, which is as follows:

   The Orders made on 24 December 2021 should be set aside, because the Defendant's failure to fully comply with the Order made on 1 November 2021 (Springing Order) was not contumacious. It was the fault of the Defendant's legal representative. The prejudice to the Defendant outweighs the factors against extending the Defendant's time to comply with the Springing Order.

2. The orders sought by the defendant are as follows:

   1. The Orders of Registrar Griffin dated 24 December 2021 be set aside.

   2. The order of the Registrar made on 1 November 2021 be amended by extending the time set out in Order 1 to 24 hours after the making of final orders in this appeal.

   3. The action be listed for mediation within 14 days of the making of final orders in this appeal.

4.Such other order as the court sees fit.  

Legal principles

1. Order 60A r 4 of the Rules of the Supreme Court 1971 (WA) (RSC) provides that a party who is dissatisfied with an order or decision of a Registrar may appeal from it. The appeal must be made to a judge, unless a judge orders that it be heard by the Master. There are some limited exceptions to the decisions that may be appealed, but those exceptions are not relevant for present purposes.

2. Order 60A r 6 of the RSC provides that an appeal shall be by way of a rehearing. In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate, having regard to all of the evidence before the appellate court, that the order that is the subject of the appeal is the result of some legal, factual or discretionary error. This is to be contrasted with appeal by way of a hearing de novo where the powers of the appellate court may be exercised regardless of error. However, this distinction is always subject to construction of the statutory provision which creates the appellate power: see Allesch v Maunz (2000) 203 CLR 172 (per Gaudron, McHugh, Gummow and Hayne JJ at [23]).

3. In CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 Le Miere J considered the meaning of O 60A r 6, particularly having regard to the fact that Registrars exercise delegated powers, and concluded (at [17]):

   The appeal from a registrar to a judge is not a hearing anew as if there had been no hearing before, and decision by, the registrar. That is apparent from O 60A r 5 which requires an appeal to be commenced by filing a notice of appeal and for the notice of appeal to state, amongst other things, the grounds of the appeal. Nevertheless, having regard to the fact that a registrar is exercising delegated powers, and having regard to the provisions of O 60A r 4, 5 and 6, an appeal from a registrar by way of rehearing involves many of the features of a hearing de novo. The appeal may be on the evidence before the registrar or as supplemented by any further evidence the judge admits. The appeal from a registrar to a judge is a hearing de novo in the sense that the powers of the court on appeal are exercisable not only where the appellant can demonstrate that, having regard to all the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. On an appeal from a registrar the court may exercise its powers regardless of error.

4. The ability of a judge to exercise the power to set aside an order of a Registrar on an appeal regardless of error is pertinent to the circumstances of this case.  It would be hard for an appellant to establish error where the final order is the result of a springing order made by consent.  A Registrar could hardly be faulted for making an order that both parties seek. However, if the powers on appeal are not limited to circumstances in which error is identified it is then open to consider whether the appeal should be allowed to ensure that the outcome is a just one.  That exercise can take into account any further evidence that may explain why the order was not complied with.

5. In CVW the appellant failed to comply with an order for discovery which included a springing component.  As here, the appellant sought that the final order be set aside, and that time be extended for compliance with the springing order.  Le Miere J noted that the court has a discretion whether to extend time and a party does not have an entitlement to an extension of time subject to payment of costs by way of compensation.  All matters relevant to the exercise of the power to extend time should be weighed.  The fact of substantial delay and wasted costs and their effect on the parties the court and other litigants must be taken into account: Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175.

6. In MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 the following factors were said to be relevant to the exercise of the discretion (at [14]):

   1.the circumstances in which the springing order came to be made;

   2.the reason for non-compliance with the springing order;

   3.the prejudice to the defaulting party if time is not extended; and

   4.the prejudice to the other party if time is extended.

7. The court must exercise its discretion having regard to all of the relevant considerations.  After considering all of these the court must ask 'what does justice in all the notions or senses of it that are relevant require in the circumstances of this case?': The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASC 93, 30 WAR 398 [103].

8. A party is not excused from the consequences of their legal representative's defaults.  However, where the prejudice to the appellant if time is not extended outweighs the factors against the extension of time a springing order may be set aside: CVW Group Holdings Pty Ltd v Addison, [44].

Merits of the appeal

1. The circumstances in which the springing order came to be made are that the defendant had failed to comply with a number of previous orders.  In particular, there had been a number of extensions allowed for the provision of discovery.  However, the failure was not entirely attributable to dilatoriness on the part of the defendant or its solicitors.  For at least one period in 2021, Mr Johnson, the sole director of the defendant, was in hospital and then confined to bed following back surgery: it would appear that one of the extensions took that incapacity into account. Nonetheless, that incapacity does not explain all of the delay.  It would appear that in agreeing to the springing order on 1 November 2021 there was a tacit acceptance by the defendant that the delay was unacceptable. 

2. As to the reason for non‑compliance with the springing order, it is accepted by the defendant's solicitor that he alone bears the blame in that regard.  The defendant provided the relevant information required for discovery and the unavailable dates for mediation to its solicitor with sufficient time for the orders to be complied with.  It is also relevant to take into account that discovery was provided only one day late and that the unavailable dates were provided in December.  These matters are also relevant in assessing the prejudice to the plaintiff if time is extended.

3. As to the prejudice to the defendant if time is not extended, the defendant will thereby lose the right to defend the proceedings.  Of course, that is a consequence that will inevitably flow from a failure to comply with any springing order.  In the circumstances of this case however, the remedies sought by the plaintiff (that is, specific performance requiring the building of a substantial commercial development in a regional centre and unquantified obligations to pay compensation) are likely to have very significant financial implications for the defendant.  To suggest, as does the plaintiff, that the defendant's remedy for the failings of his solicitor is for it to take action against the solicitor assumes that any such action would substantially ameliorate the prejudice.  It is not apparent that that is so.  Furthermore, this is not a case where the defendant was complicit in the failings of his lawyer.  The evidence on the appeal is that the defendant took the obligations under the consent orders seriously and made its best endeavours to comply with them. 

4. As to prejudice to the plaintiff, it is submitted that the plaintiff would be prejudiced if the appeal was allowed because it would be denied the benefits of the judgment obtained by default.  The plaintiff also says that it is prejudiced by the delay that has already occurred and by any further delay in this matter being resolved.  The delay has impacted on the plaintiff because it relied on the agreement for lease and lost the opportunity to find alternative pharmacy premises.  The loss of this opportunity is not quantified, and it is not clear whether the plaintiff has been unable to continue operating its business at its existing premises.  Whilst I would accept that further delay prejudices the plaintiff, the prejudice is not such as to be incapable of being compensated in the event that the plaintiff is successful in these proceedings and does not outweigh the prejudice to the defendant if the appeal is dismissed.

Conclusion

1. Springing orders should not be too readily made given their significant consequences.  In this case, the springing order was made appropriately.  That is not simply because it was made by consent but because there had been a history of delay.  There was no error by Registrar Griffin.  That, however, does not necessarily mean that justice is best served by dismissing this appeal and allowing the judgment to stand.

2. The effect of a springing order, particularly one made by consent, should not be set aside lightly.  If a party in breach of a springing order can too easily have it set aside the effectiveness of such orders will be rendered nugatory.  The power of springing orders to act as an incentive to compliance lies in the fact that usually they will be self-executing and final.  It will be a rare case in which an appellant can establish that judgment resulting from a springing order made by consent should be set aside.

3. Taking into account the reasons for non‑compliance with the springing order and the very significant prejudice to the defendant as opposed to the less significant, though not inconsequential, prejudice to the plaintiff, the just outcome is that the appeal be allowed and an extension to comply with the springing order be granted.

Costs

1. Order 66 r 5(1) of the RSC provides that a court may order a legal practitioner to pay the costs of a party in certain circumstances. Those circumstances are where costs are incurred by a party as a result of any improper, unreasonable or negligent act or omission or which, in the light of any such act or omission occurring after they were incurred, the Court considers it is unreasonable to expect that party to pay. The court may order the practitioner to pay the relevant costs personally, not claim any costs or fees or refund any relevant costs or fees already paid.

2. Order 66 r 5(2) provides that an order of costs against a practitioner shall not be made unless the practitioner has been given a reasonable opportunity to appear before the court and show cause why the order should not be made (except in limited circumstances which do not apply).

3. In this case, counsel who appeared for the defendant on the appeal proposed an order that costs be payable by Mr Poli.  Counsel advised that he had discussed the matter with Mr Poli and that Mr Poli accepted that such an order was appropriate.  In these circumstances I am satisfied that Mr Poli has been given an opportunity to appear and show cause why an order should not be made.  I am also independently satisfied that such an order should be made.  The failure to comply with the springing order was a negligent act on the part of Mr Poli and it is that failure which has necessitated these proceedings.

Orders

1. The following orders will be made:

   1. The Orders of Registrar Griffin dated 24 December 2021 are set aside.

   2. The Orders of Registrar Griffin made on 1 November 2021 are amended by extending the time set out in Order 1 to 24 hours after the making of final orders in this appeal.

   3. The action be listed for mediation within 14 days of the making of final orders in this appeal.

   4. Mr Timothy Poli of Kings Park Legal, formerly the legal practitioner representing the defendant, not claim any costs or fees of this appeal from the defendant, refund any costs or fees of this appeal already paid by the defendant and pay the plaintiff's costs of this appeal on an indemnity basis, subject to those costs being reasonably incurred.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JS

Associate to the Honourable Justice Hall

7 APRIL 2022