Taylor v Taylor

[2025] NSWSC 166

Supreme Court

New South Wales

Medium Neutral Citation:

Taylor v Taylor [2025] NSWSC 166

Hearing dates:

07 March 2025

Date of orders:

07 March 2025

Decision date:

07 March 2025

Jurisdiction:

Equity

Before:

Elkaim AJ

Decision:

1. Extend time for the filing of the plaintiff’s notice of motion pursuant to r 49.20 of the Uniform Civil Procedure Rules 2005 (NSW) to 4 December 2024.

2. The orders made by the Registrar on 4 July 2024 are set aside.

3. The matter is to be listed for directions before the Equity Registrar on Wednesday 19 March 2025.

4. Plaintiff to pay the costs of the notice of motion.

5. The defendant’s notice of motion filed on 27 February 2025 is dismissed with no order as to costs.

Catchwords:

PROCEDURE — Application to set aside Registrar’s orders — Plaintiff overseas and without legal representation — Whether it’s unjust for orders to stand — Orders set aside

Legislation Cited:

Uniform Civil Procedure Rules (2005) NSW, rr 13.6, 49.19, 49.20

Cases Cited:

Northey v Bega Valley Shire Council [2012] NSWCA 28

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Procedural rulings

Parties:

Andrew John Taylor (Plaintiff)
Lachlan James Taylor (Defendant)

Representation:

Counsel:
Mr G Kassisieh (Plaintiff)
Mr E Chrysostomou (Defendant)

Solicitors:
Gibson Howlin Lawyers (Plaintiff)
Michael Abboud & Co Solicitors & Barristers (Defendant)

File Number(s):

2020/364068

Publication restriction:

No

Ex-Tempore JUDGMENT - revised

1. These proceedings were commenced by the plaintiff in December of 2020. They involve a claim for an interest in a property registered in the name of his brother, who is the defendant. The property is situated in Constitution Hill which is a suburb of Sydney. According to the plaintiff, he contributed to the purchase of that property and is entitled to an interest in the property; according to his brother he paid no more than rent.

2. The matter seems to have wound its way through the Court process for a long time without fault for that being attributed to either side. There is no suggestion that the plaintiff was responsible for the long delays, at the same time there is no suggestion that the defendant was responsible. In any event, it was listed for directions before the Registrar on 17 June 2024.

3. On 14 June 2024, the plaintiff’s solicitor sent him a notice saying that he intended to file a notice of ceasing to act. That was on 14 June, which was a Friday, that Friday is of course the Friday before the Monday of 17 June. The plaintiff was not in Australia, he was in Los Angeles. He probably received the email sometime on 14 June, but he took no action and probably did not have time to take any action by 17 June because he no longer had a solicitor.

4. When the matter came before the Registrar on 17 June 2024, the Registrar noted the plaintiff’s absence and put the matter over to 4 July. The Registrar also sent the plaintiff a letter pursuant to r 13.6 Uniform Civil Procedure Rules (2005) NSW (UCPR) telling him that the matter had been adjourned.

5. The plaintiff got back from America on 2 July 2024. The matter then came on for directions on 4 July, and the Registrar noticed that the plaintiff was not there, nor any solicitor on his behalf. The plaintiff was called outside court and there was no response. The Registrar was then faced with the position of a litigant that had not appeared on two subsequent occasions. The Registrar, not being aware of the background circumstances, took the correct course of dismissing the claim.

6. The plaintiff did not find out that his claim had been dismissed until November 2024 when he was talking to his brother who told him that his claim had been dismissed. He was alarmed at this news and immediately, or at least the next day I think, saw a solicitor and then a notice of motion was filed on 4 December to redress the position that had occurred.

7. The defendant has also put on a notice of motion filed on 27 February this year, which seeks to have the plaintiff’s notice of motion dismissed. It is not clear why that motion was necessary. The important point is that the defendant says that the plaintiff's motion should be dismissed primarily because the plaintiff should have done something about getting representation a lot earlier, and also should have acted much quicker after 4 July 2024.

8. One of the bases upon which the plaintiff now moves is r 49.19 of the UCPR, which allows a Registrar’s order to be set aside. However, an application to do so needs to be made within 28 days, but r 49.20 says that time can be extended. There is also a suggestion that the plaintiff was suffering from post-traumatic stress disorder (PTSD) consequent upon his service in the armed forces. There is a general practitioner's letter to that effect stating that the PTSD was particularly bad in July of 2024. I do not place a great deal of weight on that letter. That is not to suggest that the plaintiff does not suffer from PTSD, and it is well-known that PTSD is a disorder that fluctuates and also lasts for a long time, however, I do not regard it as part of any significant reason for him not taking action.

9. The suggestion seems to be that he did not do anything because he did not realise anything was amiss. He had often waited long periods of time for correspondence to arrive and that seems reasonable when one looks at the background of this matter having commenced in 2020. At the end of the day, it seems that the plaintiff has been a bit lax in his reaction to not having a solicitor and in doing something about it.

10. What the authorities say in these sorts of actions is that the justice of the case is the most important thing. I have been given a couple of authorities to that effect and there is no doubt that what is “fair and just” should be the dominating feature of my decision (Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [7]; Northey v Bega Valley Shire Council [2012] NSWCA 28 at [16])

11. We have a proceeding started a long time ago which has finally worked its way up to getting, it would seem, reasonably close to a hearing and then, because of a couple of non-appearances, the proceedings are dismissed. I think there is good reason for there not having been any appearance on 17 June; I am not sure about 4 July. But when one looks at the matter generally, it seems particularly harsh and particularly unjust for these proceedings to be terminated simply because of that non-appearance.

12. I intend to make an order that the proceedings effectively be reinstated. However, I am mindful that there was perhaps some unnecessary delay on the plaintiff's part, and I think that he should pay the costs of this notice of motion. I was asked to reserve the costs but I think that the order should be made now, although obviously the costs order will not take effect until the finalisation of the proceedings.

13. As to which rule the order should be made under, I do not think it matters too much, but the primary rule that the plaintiff has moved under is r 49.19, so I will proceed under that order.

14. I make the following orders:

1. Extend time for the filing of the plaintiff’s notice of motion pursuant to r 49.20 of the Uniform Civil Procedure Rules 2005 (NSW) to 4 December 2024.

2. The orders made by the Registrar on 4 July 2024 are set aside.

3. The matter is to be listed for directions before the Equity Registrar on Wednesday 19 March 2025.

4. Plaintiff to pay the costs of the notice of motion.

5. The defendant's notice of motion filed on 27 February 2025 is dismissed with no order as to costs.

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Decision last updated: 10 March 2025