Wakim v Paul Adrian Mee Ling t/as Mee Ling Solicitors

[2014] NSWSC 639

Supreme Court

New South Wales

Medium Neutral Citation:

Wakim v Paul Adrian Mee Ling t/as Mee Ling Solicitors [2014] NSWSC 639

Hearing dates:

22 May 2014

Decision date:

22 May 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. In each matter the proceedings are dismissed pursuant to r 12.7 UCPR

2. The Plaintiff in each case is to pay the Defendant's costs of the Notice of Motion and the costs of the proceedings.

Catchwords:

PROCEDURE - want of prosecution - no action taken by Plaintiff for more than 12 months - one set of proceedings stayed for non-payment of costs order - Plaintiff bankrupt - deemed election by trustee not to prosecute - Plaintiff contemplates s 179 Bankruptcy Act application - proceedings dismissed

Legislation Cited:

Bankruptcy Act (1966) (Cth)
Uniform Civil Procedure Rules

Category:

Interlocutory applications

Parties:

Elias George Wakim (Plaintiff)
Wakim v Paul Adrian Mee Ling t/as Mee Ling Solicitors (Defendant)

Representation:

Counsel:
A S Margiotta (Appeared for the Plaintiff as a courtesy to the Court re Matter 2012/18593)
R Ardino (Plaintiff re Matter 2012/186113)
T M Faulkner (Defendant)
Solicitors:
Margiotta Solicitors & Attorneys (Appeared for the Plaintiff as a courtesy to the Court re Matter 2012/18593
Morgan Ardino & Co Solicitors (Plaintiff re Matter 2012/186113)
Gilchrist Connell (Defendant)

File Number(s):

2012/18593 & 2012/186113

Judgment

1. The Plaintiff commenced two sets of proceedings against the Defendant arising out of the Defendant's having acted for the Plaintiff in legal proceedings. In proceedings 2012/18593 the Statement of Claim was filed on 18 January 2012 and in proceedings 2012/186113 the Statement of Claim was filed on 13 June 2012.

1. On 8 May 2013 Beech-Jones J in proceedings 2012/18593 ordered the Plaintiff to pay the Defendant's costs of a Motion. Those costs were not paid. On 3 July 2013 the Registrar stayed those proceedings until the costs were paid. Up to the present time those costs have not been paid.

1. In proceedings 2012/186113 the Defendant requested particulars of the claim made on 24 April 2013. Those particulars were not provided. The Court listed those proceedings for directions on 12 March 2014 and at the present time they have been adjourned until 29 May 2014. In any event, what is clear is that in both sets of proceedings to the end of 2013 no action has been taken by the Plaintiff.

1. On 18 December 2013 the estate of the Plaintiff was sequestrated. As a result his rights in relation to the bringing of the two sets of proceedings vested in the trustee and the actions were stayed pursuant to s 60(2) of the Bankruptcy Act (1966) (Cth) until the trustee made an election in writing to prosecute or discontinue the action. Sub-section (3) provides that if the trustee does not make such an election within twenty eight days from the date on which the notice of the action is served upon him by the Defendant, the trustee is deemed to have abandoned the action.

1. Notices were served on the trustee on 17 and 23 January 2014 respectively in relation to the two sets of proceedings. The trustee did not make, and has not made, an election to the present time. The result is that the trustee is deemed to have abandoned both claims.

1. In those circumstances, the Defendant seeks by Notice of Motion in each matter that the proceedings be dismissed pursuant to r 12.7 UCPR and/or pursuant to the inherent jurisdiction of the Court.

1. The only matter that has arisen for consideration was a stated intention by the Plaintiff first to appeal against the trustee's decision not to elect under s 178 of the Bankruptcy Act, and subsequently to make an application under s 179 of that Act to enquire into the conduct of the trustee.

1. Solicitors have appeared for the Plaintiff in each of the matters this morning. The solicitor in 2012/18593, Mr Margiotta, has appeared as a matter of courtesy to the Court because he intends to file a Notice of Ceasing to Act.

1. Mr Ardino appears in proceedings 2012/186113 and continues to act for the Plaintiff so far as he is able to do so.

1. He has received instructions, he informs me, that an application will be made under section 179 of the Bankruptcy Act in relation to the trustee's actions generally. He tells me that such an application would include a consideration of the matters which it was thought would be considered in the s 178 application that was earlier contemplated.

1. An affidavit from the solicitor for the Defendant sets out conversations which he has had in April and May this year with a representative of the trustee. Those conversations made clear that in the contemplated s 178 application the trustee's failure to elect in the two present proceedings were not to be included. However, regardless of that, any application under s 178 is required under sub-s (2) to be made not later than sixty days after the day on which the person became aware of the trustee's act, omission or decision.

1. Accordingly, any application under s 178 with regard to a failure to elect in relation to these proceedings is now out of time. Although, as a matter of discretion, this Court may refuse to dismiss proceedings the subject of a s 178 application, where such an application is not brought within time, there would need to be powerful factors to persuade the Court to exercise its discretion in favour of the bankrupt. However, as I have said, such an application is not now contemplated.

1. I do not think, even accepting that a s 179 application is to be made, that such an application provides any basis now for not dismissing the present proceedings. Quite apart from the bankruptcy, no action has been taken in relation to either of them for a period of twelve months. One of them was expressly stayed until some costs were paid and that has not happened.

1. That alone would be enough after a twelve month period to justify dismissal of the proceedings under r 12.7.

1. Accordingly, in the circumstances, I make an order that both of the proceedings be dismissed pursuant to r 12.7 UCPR. The Plaintiff in each case is to pay the Defendant's costs of the Motion and the costs of the proceedings.

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Decision last updated: 28 May 2014