Srinivas and Deepti Nayak v Rockwall Constructions Pty Ltd

[2015] NSWCATCD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Srinivas and Deepti Nayak v Rockwall Constructions Pty Ltd [2015] NSWCATCD 80

Hearing dates:

11 June 2015

Decision date:

24 July 2015

Jurisdiction:

Consumer and Commercial Division

Before:

J A Ringrose, General Member

Decision:

1. The application is dismissed pursuant to the provisions of s 55(1)(d) and Sch 4, Pt 5, Cl 10 of the Schedule to the Act.

2. The applicants are to pay the respondents’ costs of the application as agreed or assessed in accordance with the Legal Profession Act 2004.

Catchwords:

Dismissal for want of prosecution of the proceedings – proceedings conducted in such a way as to unreasonably disadvantage the other party in the proceedings.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 s 55, Sch 4, Pt 5, cl 10

Cases Cited:

Minister for Immigration and Multicultural Affairs, v Bhardwaj (2002) HCA 11
Cameron v Cole (1944) 68CLR 571 at 589
Stollznow v Calvert (1980) 2 NSW LR 249

Category:

Principal judgment

Parties:

Srinivas Nayak and Deepti Nayak (Applicants)
Rockwall Constructions Pty Ltd (Respondent)

Representation:

Mr Dutt, Solicitor of Reuben George Lawyers appeared for the applicants.
Mr Haaring of A.I. Legal appeared for the respondent.

File Number(s):

HB 14/44429

Publication restriction:

Nil

REASONS FOR DECISION

BACKGROUND

1. By a home building contract dated 7 December 2012 the applicants engaged the respondent to carry out certain building works on their property at [****] Bella Vista at a total cost of $977,636.00. The price was later revised to $998,838.54 according to the applicants.

2. The respondent claims that work commenced on 5 February 2013 and was completed in June 2014 and that the applicants failed to pay a claim of $90,809.53 on or before 4 September 2014.

3. The applicants contend that the respondent terminated the contract pursuant to cl 26 thereof on 8 September 2014 and has failed to identify defaults on the applicants’ part or provide a written notice that unless the alleged default is remedied the respondent intended to terminate the contract.

4. The applicants, through their solicitors, Reuben George Lawyers, filed the present application on 9 September 2014 claiming compensation in the sum of $500,000.00 being the completion costs for the contract in a sum of $537,699.00, together with damages for defective works in the sum of $30,000.00 and a refund of over payment in the sum of $187,731.80. The applicants appear to have conceded a reduction in their claim to the statutory limit of the Tribunal.

5. On 31 October 2014 the respondent herein filed a related cross-claim (HB 14/53291) seeking payment of a balance owing under the contract in the sum of $90,809.53. That balance was claimed to have been made up as;

Contract sum - $977,636.24

Variations in the sum of $127,440.86 less deposits $10,000.00, less progress payments $612,318.57 less variations 1-4 $40,000.00 less unused drawdowns $351,949.00.

6. The present matter was initially listed before the Tribunal on 4 November 2014 when the following orders were made;

1. Hearing adjourned to a date to be fixed by the Registrar.

2. The owners claim seeks damages for defective and incomplete work well in excess of the jurisdiction or limit of the Tribunal possibly as high as 1.3 million and the parties may provide written consent orders transferring both matters (the owners and builders claim) to a court of competent jurisdiction and the orders may be made in chambers. Such written consent orders shall be provided to the Registrar no later than 18 November 2014.

3. In the event that order 2 above is not complied with, the matter may be transferred by order of the Tribunal on the next occasion.

4. In the event that the applicant can satisfy the Tribunal that the claim is reduced to the jurisdiction limit, the respondent builder reserves its right to file an amended cross claim.

7.  When the matter was listed before the Tribunal for directions on 16 December 2014 the Tribunal noted that the home owners claimed $537,000.00 but submitted to the jurisdiction a limit of the Tribunal. It was noted that the home owner had filed and served all expert and lay evidence upon which they sought to rely and that the builder was required to serve all expert and lay evidence by 30 January 2015. The builder sought leave to amend its cross claim to include a loss of profit and the amendment was to be fully particularised before 23 January 2015. The home owner was directed to file and serve all documents in defence to the cross claim by 13 February 2015 and leave was granted to both parties to be legally represented.

8. On 23 January 2015 the parties agreed upon consent orders in the following terms;

1. The home owners to file their amended application, fully particularising their claim and to advise the builder of the sections of the report by Hugh B. Gage they no longer rely on by 6 February 2015.

2. The builder to file and serve its amended cross claim, lay and expert evidence they seek to rely on in their cross claim and in defence to the home owners claim by 13 March 2015.

3. The home owners to file and serve all documents they seek to rely upon in defence of the cross application (HB 14/53291) by 27 March 2015.

4. On or before 3 April 2015 all experts are to meet and file a joint expert reports or reports (or combined Scott Schedule as appropriate) setting out the areas of agreement and disagreement and any reasons for those disagreements including references to the experts reports previously filed and served.

5. Directions herein listed for 10 March 2014 to be adjourned to a date after 27 March 2015.

The consent orders sought by the parties were made by the Tribunal on 5 February 2015.

9. The matter was listed for further directions on 21 April 2015 when neither the applicants nor their legal representatives appeared and the solicitor for the respondent claimed that the applicant had failed to comply with direction (1) made on 5 February 2015 and had failed to respond to attempts to contact their representative made by the respondents’ solicitors. The Tribunal made the following orders on 21 April 2015;

1. The Hearing is adjourned to a date to be fixed by the Registrar.

2. The Tribunal notes that the applicant has failed to comply with direction (1) made on 5 February 2015 and has failed to respond to attempts to contact their representative made by the respondents’ solicitor.

3. The applicant/applicants’ representative is to file and serve an affidavit setting out the reasons direction (1) made on 5 February 2015 has not been complied with and the steps taken to comply with the Tribunal direction since 5 February 2015 together with submissions addressing why the application should not be dismissed pursuant to s 55 (1)(d) or Schedule 4, Clause 10(1) of the Civil and Administrative Tribunal Act 2013 by 1 May 2015.

4. The respondent shall file and serve any evidence and    submissions in response by 15 May 2015.

5. A show cause hearing will be listed not before 18 May 2015.

6. If the applicant does not comply with direction (3) above this application may be dismissed on the next occasion.

10. A copy of those orders were sent on 21 April 2015 to the applicants, care of their solicitors at the address for service which had been previously advised, namely Suite G 08/29-31 Lexington Drive Bella Vista NSW 2153.

11. On 5 May 2015 notice of a hearing to show cause listed for 11 June 2015 was forwarded to the applicants’ solicitors at their postal address and via email.

12. By a letter dated 5 May 2015, Mr Reuben George contacted the Registry indicating that the firm had just received a notice of hearing by email stating that the matter was listed for show cause on 11 June 2015. He noted that the matter was listed for directions on 21 April 2015 and that orders were made in the absence of the applicant. He claimed that the solicitors did not appear on 21 April 2015 because they did not receive a notice that the matter was listed for directions. He claimed that the notice of orders made on 21 May were first received in his office on 5 May 2015. The letter continued;

“We confirm that we have now received and considered the orders made on 21 May (stet) 2015. To avoid unnecessary costs and delay in the proceedings we respectfully seek the indulgence of the Tribunal for an extension of 7 business days from today to comply with Order 3.

Given the above we respectfully submit that an opportunity for the    applicant to comply with Order 3 and provide submissions is in line with keeping the jurisdiction just, quick and cheap.”

13. An acknowledgement of the receipt of that request was forwarded both by email and by post to the applicants’ solicitors on 15 May 2015 and they were advised that a written response from the builder was required by 18 May 2015 and that the timetable would remain unchanged unless the Tribunal advised that it had been amended.

14. It is significant to note that the 7 business days originally requested by the applicants’ solicitors on 5 May 2015 would have expired on 14 May 2015, before the communication was sent out from the Registry. It is also appropriate to note that by 15 May 2015 no amended application or particularised claim had been received from the applicants or their solicitors in compliance with Order 1 made on 5 February 2015.

15. On 18 May 2015 the solicitors for the respondent, Rockwall Constructions Pty Ltd wrote to the Tribunal detailing attempts to contact the respondents’ solicitors between 4 March 2015 and 14 April 2015 and attaching a letter addressed to the applicants’ solicitors notifying them of the directions hearing to be held on 21 April 2015. The letter of 14 April 2015 was forwarded to the applicants’ solicitors at the post office box address referred to on their letterhead.

16. At 6.09pm on 26 May 2015 Mr Tarrone Dutt of Reuben George Lawyers forwarded a letter to the Registry of the Tribunal which bore the date 5 May 2015 but which, it is assumed was written after 22 May 2015 and probably on 26 May 2015. The letter noted in part;

“On 22 May 2015 we telephoned the Registry and was informed that the respondent had not replied to the email.

We note that we have contacted the Registry numerous times by telephone regarding the letter and the email and are yet to receive a    response to our request. We have pursued our correspondence with the Tribunal with urgency as we are mindful that the matter has been listed for a Show Cause Hearing on 11 June 2015.

At present the applicant is unsure if;

(1)   they have leave from the Tribunal to file and serve submissions and an affidavit to comply with Order 3 of the orders made by the Tribunal on 21 April 2015, in our absence and that the Show Cause Hearing has been adjourned or located, or;

(2)   if the applicant should proceed to prepare for the show cause hearing.

Earlier this morning, the Registry informed us that the matter would be raised before a Tribunal Member today. We have not been informed of any outcome. In the event that a determination has not been made and in the interest to save time and costs we respectfully request that the Tribunal make a determination to our application outlined in the letter at the earliest opportunity”.

17. The Tribunal records show that apart from the letter of 5 May 2015 which was forwarded at 7.23pm on that date that the Deputy Divisional Registrar had a telephone conversation with Mr Dutt on 26 May 2015, and the following notes of the conversation appear;

“I advise that extension of time request would be forwarded to the Member today.

I confirmed that submissions had not yet been received and sought a date by which Mr Dutt would comply.

Mr Dutt stated that until the Tribunal provided a new compliance date, he should not be required to lodge submissions.

I drew Mr Dutt’s attention to the correspondence issued 5 May 2015 that confirms the timetable of 21 April 2015 remained unchanged unless advised.

After much discussion Mr Dutt nominated compliance date of 7 days from today being 2 June 2015.

18. No material was received from the applicants or their solicitors either in relation to the orders made on 21 April 2015 or in relation to the orders made on 5 February 2015, by 2 June 2015.

19. The matter was listed for hearing on 11 June 2015 at 11.15am and whilst Mr Haaring for the respondent attended, Mr Dutt did not arrive at the hearing room until approximately 11.25am. At that stage no documents in compliance with any of the directions previously made had been received by the Tribunal.

20. Mr Dutt, on behalf of the applicants, conceded that he had not filed any documentation in the matter but claimed that he had available an affidavit and submissions addressing the matters required by direction (3) on 21 April 2015. He claimed that he had been a solicitor since 2012 and that he had carriage of the present matter since early April 2015.

21. Mr Dutt indicated that he did have 2 affidavits which had been sworn on 10 June 2015 but neither of which had been provided either to the Tribunal or to the solicitors for the respondent.

22. Mr Dutt claimed that he had been in constant contact with the Tribunal since 5 May 2015 although the Tribunal records show evidence of only very limited contact by email and by telephone since that time.

23. In seeking leave to rely upon the affidavits Mr Dutt did not provide any explanation as to why the material he now sought to tender had not been prepared by 14 May 2015 or by any time thereafter and he was unable to provide any explanation as to why he did not prepare these documents earlier and make a copy available to the solicitors for the respondent.

24. Mr Dutt conceded that he was aware that the respondents’ solicitors were to be given an opportunity to reply to his evidence and submissions and he merely suggested that the show cause proceedings should be adjourned to afford them of that opportunity.

25. It was suggested to Mr Dutt that if the Tribunal saw fit to grant that opportunity that his clients or his firm might consider offering to pay the costs thrown away since 21 April 2015 either on a party party basis or on an indemnity basis. In response to that suggestion Mr Dutt indicated that neither he nor his clients would be prepared to offer to pay costs.

26. In all the circumstances and for reasons outlined below the matter proceeded without reference to the affidavit material which Mr Dutt sought to tender.

RESPONDENT’S SUBMISSIONS

27. Although the respondent’s solicitors did not have an opportunity to respond to the submissions prepared by the applicants for the show cause hearing, it is appropriate to note that in response to the request for an extension of time to provide submissions, Mr Haaring on behalf of the respondent wrote to the Tribunal on 18 May 2015 noting the following matters;

1. The respondent objects to paragraph 3 of the applicant’s letter and insists that the applicant was notified of the proceedings on 14 April 2015. Annexure 2 is a copy of the correspondence confirming the listing.

2. To date the applicant has not served the respondent with any material in accordance with order (3) of the proposed orders. In the event the proposed orders were made by the Tribunal the applicant would still be in breach of the proposed orders.

3. The applicant has failed to comply with the previous orders and we submit the following;

1. on 4 March 2015 our office contacted the applicant’s representative and left a message, our office received no reply to the call but received an email noting they were obtaining advice from counsel.

2. between 4 March 2015 and 9 April 2015 our office made 4 calls to the applicant’s representative, we left messages and did not receive a call back;

3. on 9 April 2015 our office made 2 phone calls to the applicant’s representative, left messages and did not receive a reply phone call. Our office proceeded to send a letter. Annexed is a copy of the letter and;

4. on 14 April 2015 our office made a phone call to the applicant’s representative, left a message and did not receive a reply phone call. Our office then sent a letter. Annexed is a copy of the letter.

4. The respondent has been exposed to significant costs due to the applicant’s non-compliance with the orders in question and previous orders made. We submit that any further extensions will result in further delay and costs to the respondent and the Tribunal.

5.  In addition to the abovementioned paragraph we note that the applicant has shown no intention to comply with the original orders made on 5 February 2014.

6. The respondent submits that the applicants’ application should be dismissed in accordance with order 6 made on 21 April 2015 for the above reasons.

7. The respondent submits that the application should be dismissed pursuant to s 55(1)(d) or Sch 4, cl 10(a) of the Civil and Administrative Tribunal Act 2013.

DECISION

28. On 9 September 2014 the applicants, through their solicitors, Reuben & George Lawyers filed the present application claiming compensation in the sum of $500,000.00 together with damages for defective works in a sum of $30,000.00 and cost of completion of the contract in a sum of $537,699.00. In commencing the proceedings in the Tribunal the applicants no doubt sought to avail themselves of an opportunity to facilitate the just, quick and cheap resolution of the real issues in the proceedings in accordance with the guiding principle enunciated in s. 36 of the Civil and Administrative Tribunal Act 2013.

29.  When the matter was listed for directions on 4 November 2014 the parties were urged to consider whether the proceedings should be transferred to a court of competent jurisdiction which had the power to determine a claim in the order of $1.3 million.

30. When the matter was returned to the Tribunal for further directions on 16 December 2014 the applicants requested that the proceedings continue in the Tribunal and indicated that they were prepared to abandon any claim in excess of the sum of $500,000.00 to enable the proceedings to remain in the Tribunal.

31. Consent orders were agreed upon between the parties on 23 January 2015 and these orders were made by the Tribunal on 5 February 2015. The orders included a requirement that the applicants file an immediate application fully particularising the claim and detailing the items which they sought to pursue in order to claim the jurisdiction limit of $500,000.00.

32. A builders cross application (HB 14/53291) had been filed on 31 October 2014 seeking a balance owing under the contract from the owners in a sum of $90,809.53. The orders made on 5 February 2015 also related to the builders cross claim and provided for a timetable which was to ensure that the evidence of both parties on the cross claim would be exchanged on or before 27 March 2015 and that the experts would meet and file a joint expert report or a combined Scott Schedule by 3 April 2015. The orders in the present claim and in the related cross claim were clearly intended to ensure that both the claim and the cross claim could be heard together as soon as possible assuming that the parties complied with their obligations to provide evidence in accordance with the directions.

33. On 21 April 2015 neither the applicants nor their legal representatives appeared and the solicitor for the respondent provided evidence of numerous attempts to contact the applicants’ solicitor without any response. The Tribunal noted that the applicant had failed to comply with direction 1 made on 5 February 2015 and had failed to respond to attempts to contact their representatives made by the respondents’ solicitor.

34. It was in that context that the Tribunal directed the applicants and/or the applicants’ representative, to file and serve an affidavit setting out reasons that direction 1 made on 5 February 2015 had not been complied with and detailing the steps taken to comply with the Tribunal direction since that date. They were also directed to provide submissions addressing why the application should not be dismissed pursuant to s 55(1)(d) of the Act or Sch 4 cl 10 under the Act. That material was to be provided by 1 May 2015 and the Tribunal ordered that a show cause hearing was to be listed after 18 May 2015. The respondent was permitted to file and serve evidence and submissions in reply to the material provided by the applicant by 15 May 2015, that is 14 days after the last date for filing of their material.

28. The final order made on 21 April 2015 clearly indicated that if the applicants did not comply with the directions then the application may be dismissed on the next occasion.

29. Although the applicants’ solicitor, Mr Dutt, claims that he had no notice of the Hearing listed for 21 April 2015 and that notice of the orders made on that date were not received until about 5 May 2015, it is clear that a letter detailing those orders made in this matter and in the related matter (HB 14/53291) were sent to the applicants c/- Reuben George Lawyers at the address set out on the firms letterhead.

30. On 5 May 2015 Mr Dutt of Reuben George Lawyers was provided by email with a copy of the orders made on 21 April 2015 by email and by facsimile. A reply from Mr Dutt on that date requested an extension of 7 business days to comply with Order 3 made on 21 April 2015 and noted that an opportunity for the applicant to comply with Order 3 and provide submissions would be in line with keeping the jurisdiction just, quick and cheap. Nothing was received from the applicants or their solicitors within the following 7 business days and on 15 May 2015 the parties were advised of the request for an extension of time with a notation that the builder could provide a written response to the request for an extension by 18 May 2015.

31. Included in the response from the solicitors for the respondent was a copy of a letter dated 14 April 2015 addressed to the applicants’ solicitors at their post office box address which detailed claims that a letter dated 9 April 2015 had not been responded to and that no communication had been received from the offices of Reuben George Lawyers since 4 March 2015 notwithstanding several attempts to contact the solicitor. The letter concluded;-

“We note that the matter is listed for directions hearing on 21 April 2015    and our client cannot progress the matter until Order 1 has been complied with by your client. We await your urgent reply.”

Details of the attempt to contact the applicants’ solicitors have been set out in the submissions provided by the respondents’ solicitors under cover of a letter dated 18 May 2015 which are referred to above.

39. A note from the Deputy Divisional Registrar dated 26 May 2015 confirms that she spoke to Mr Dutt of Reuben George Lawyers on that date and noted that submissions had not yet been received. She enquired as to a date by which Mr Dutt could comply. The notation suggests that Mr Dutt advised that until the Tribunal provided a new compliance date he should not be required to lodge submissions. The Deputy Divisional Registrar then drew the letters issued on 5 May 2015 to his attention and after discussion Mr Dutt nominated that he would comply within 7 days namely by 2 June 2015.

40. By a letter dated 28 May 2015 parties were advised that a request for an extension of time had not been granted and that matters raised by the applicant should be raised at the show cause hearing on 11 June 2015.

41. The matter was listed for hearing at 11.15am and notwithstanding a stipulation in the notice that parties should endeavour to arrive at least 15 minutes to the state of hearing time. Mr Dutt failed to attend until 11.25am. Upon his arrival he indicated that he had an affidavit and submissions in his possession which had been executed on 10 June 2015 notwithstanding his earlier claims that he could have this material initially available by 14 May 2015 and that he would have it available by 2 June 2015. Mr Dutt was invited to indicate to the Tribunal why he should be granted leave to rely upon the documents in the circumstances. He provided no explanation for his failure to provide the material by 14 May 2015 or by 2 June 2015 in accordance with his earlier proposal and when it was suggested that the respondent should be given an opportunity to respond to the evidence and submissions he merely suggested that the proceedings could be adjourned for that purpose. No formal application was made for an adjournment although it is assumed that an application for adjournment was implied in Mr Dutt’s remarks.

42. In order to enable the Tribunal to consider the balance of convenience in relation to any adjournment Mr Dutt was invited to consider whether his clients or his firm would consider payment of the costs thrown away as a result of the adjournment of the show cause proceedings and he simply indicated that neither his office nor his clients would be prepared to pay costs. In these circumstances the applicants were refused the leave to rely on material which had not yet been filed in the Tribunal and Mr Dutt, on behalf of the applicants was invited to indicate why the application should not be struck out. Nothing further of any significance was put by him in support of a contention at the strike out application should be declined.

43. The grant or refusal of adjournment is a discretionary matter and a reasonable request for adjournment must be granted so that the party has an opportunity to answer the case against him or her (Minister for Immigration and Multicultural Affairs, v Bhardwaj (2002) HCA 11). It is clear that a refusal to grant an adjournment may involve a denial of natural justice if the refusal results in a party not having a reasonable opportunity to present his or her case (Cameron v Cole (1944) 68CLR 571 at 589).

44. Section 36(3) of the Civil and Administrative Tribunal Act 2013 provides that a party to proceedings in the Tribunal and a legal practitioner or other person representing a party in the proceedings, is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal. It is in the light of the principle and in conjunction with the guiding principle of just, quick and cheap resolution of the real issues between parties to proceedings that the question of whether the applicants and their solicitor had been given an reasonable opportunity to be heard and put a case in relation to the show cause proceedings. The applicants, through their solicitors refused to concede any order for costs to enable the matter to be adjourned and to give the respondent an opportunity to reply to the material which they sought to put before the Tribunal. In such circumstances it is appropriate to refuse any express or implied application for adjournment and to refuse to allow the applicants to rely upon the documents which should have been filed on 1 May 2015, could have been filed on 14 May 2015 in accordance with the first request for an extension and should have been filed, on the basis of the final proposal to the Divisional Registrar, by 2 June 2015.

45. In accordance with the orders made on 21 April 2015 the matter was specifically listed on 11 June to require the applicants to show cause why the application should not be dismissed pursuant to s 55(1)(d) or Sch 4 cl 10 of the Civil and Administrative Tribunal Act 2013. Order 6 made on 21 April 2015 specifically provided;-

“6. if the applicant does not comply with direction 3 above, this application may be dismissed on the next occasion.”

46. Section 55 of the Act provides for dismissal of proceedings and so far as it is relevant s 55(1)(b) provides;

(1)   the Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances; … (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.

The material required in accordance with Order 3 made on 21 April 2015 was intended to address and explain the delays on the part of the applicants in the light of the material placed before the Tribunal by the respondents’ solicitors on that date.

47. Schedule 4 to the Act relates to the Consumer and Commercial Division and Pt 5 cl 10 of that Schedule provides;-

10 proceedings causing disadvantage

(1)   the Tribunal may exercise the powers confirmed by this clause if the Tribunal is of the opinion that the party in any proceedings    for the exercise of a division function is conducting the proceedings in such a way that unreasonably disadvantages    another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal).

Sub-clause (2) provides that a Tribunal may, if the party causing the disadvantage is the applicant or the proceedings or part of the proceedings be dismissed or struck out.

48. Clause 10(3) provides that, before making any order under sub-clause (2) against the party, the Tribunal is to have regard to the following;-

1. the extent to which the party is familiar with the procedures of the Tribunal;

2. the party’s capacity to understand and act on the direction of the Tribunal;

3. whether the party suffers from a disability;

4. whether the party is acting deliberately in failing to comply with the Tribunals directions.

Sub-clause (4) provides that the provisions of cl 10 are in addition to and do not limit the provisions of s 55 of the Act.

49. Mr Dutt, solicitor, on behalf of the applicants indicated that he had been admitted as a solicitor since 2012 and that he was the solicitor responsible for the carriage of the matter on behalf of the applicants since April 2015. It is appropriate to assume that he had some familiarity with the procedures of the Tribunal or at least with the need to comply with the directions of a court or tribunal, particularly where strike out proceedings were foreshadowed. At no time during the course of his oral submissions did he suggest that he had difficulty in understanding the directions of the Tribunal or that he or his clients suffered from any disability. There is little doubt that Mr Dutt would have been aware of the intention of the Tribunal to deal with the builders’ claim for payment of balance of monies at the same time as the owners claim for damages including the cost of completing the contract.

50. At the time of hearing of the show cause action no amended claim had been provided in accordance with the directions of the Tribunal made on 5 February 2015 and the correspondence from the respondents’ solicitors to Mr Dutt on 9 April and 14 April 2015 pointed out that the respondents’ solicitors had not received any communication from the applicants’ solicitors since 4 March 2015 and attempts were made to contact that firm on 9 April 2015 and again on 14 April 2015 without success. The final paragraph of the letter noted;-

“we note that the matter is listed for directions hearing on 21 April 2015 and our client cannot progress the matter until Order 1 (of orders made on 5 February 2015) has been complied with by your client.”

51. In submissions filed on 18 May 2015 by the respondents’ solicitors, notwithstanding that no submissions had been received from the applicants’ solicitors, Mr Haaring pointed out that the respondent had been exposed to significant costs due to the applicants non-compliance with the orders in question and previous orders made and he submitted that any further extension would result in further delay and costs to the respondent and to the Tribunal. He pointed out further that the applicant had shown no intention to comply with the original orders made on 5 February 2014. The evidence available points to a want of prosecution of the proceedings by the applicants within the meaning of s 55 of the Act and the conducting of proceedings by the applicant in such a way that unreasonably disadvantaged to the respondent within the meaning of cl 10(1) under Sch 4.

52. Failure to respond to correspondence from solicitors for the other party, if unexplained, gives rise to an inference that there has been an intentional delay. The failure to provide the material at the earliest possible time after it was clear that show cause proceedings were involved. It was also suggestive of intentional or contumelious conduct.

53. The power to dismiss an action for want of prosecution is not confined by rigid guidelines, Stollznow v Calvert (1980)2 NSW LR 249 and Micallef v ICI Australia Operations Pty Ltd (2001) NSWCA 274. The guiding principle for the Civil and Administrative Tribunal Act 2013 of facilitating just, quick and cheap resolution of real issues between the parties is a paramount principle as is the duty imposed under s 36(3) to co-operate with the Tribunal to give effect to the guiding principle and to participate in the processes of the Tribunal and comply with the directions of the Tribunal. That obligation extends to a party to the proceedings and to an Australian legal practitioner who is representing a party in the proceedings.

54. Although appellant courts have criticised the striking out of a claim where the matter can be brought again within the limitation period, it is significant to note in the present circumstances that the parties were, or ought to have been aware of the intention of the Tribunal to deal with the builders claim for balance of monies owing at the same time as the owners claim for damages for failure to complete the contract. The actions of the applicants, through their solicitor, have frustrated this purpose and it is appropriate, in the present case that the provisions of s 55 of the Act and of cl 10 of Pt 5 to Sch 4 should be invoked to strike out the present proceedings. The respondent has requested the strike out procedure be ordered notwithstanding that the builder may be exposed to some disadvantage where the proceedings are separated. In the circumstances the applicants’ proceedings are dismissed and the Tribunal orders that costs of these proceedings be paid as agreed or assessed in accordance with the Legal Practitioners Act 2004. Although no steps have been taken to make a specific order for costs against any particular person or persons, it is hoped that if the delays in dealing with this matter fall at the hands of the solicitors for the applicants that the applicants themselves will not be obliged to bear the order for costs.

J A Ringrose

General Member

Civil and Administrative Tribunal of New South Wales

24 July 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 September 2015