Winau Aust Pty Ltd v LCC Property Development Pty Ltd - [2023] NSWSC 1355

Supreme Court

New South Wales

Medium Neutral Citation: Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2023] NSWSC 1355
Hearing dates: 09 November 2023
Date of orders: 09 November 2023
Decision date: 09 November 2023
Jurisdiction: Equity
Before: McGrath J
Decision:
See [68]

Catchwords:
PRACTICE AND PROCEDURE — judgments and orders — proceedings dismissed for want of due despatch — no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
Stollznow v Calvert [1980] 2 NSWLR 749
Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9
Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors(No. 2) [2011] NSWSC 1122
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2019] NSWSC 499
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2020] NSWSC 434
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2021] NSWSC 612
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2021] NSWSC 1361
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2022] NSWSC 1258,
Winau Aust Pty Ltd v LCC Property Development Pty Ltd (No 2) [2020] NSWSC 586
Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405

Category: Principal judgment
Parties: Winau Aust Pty Ltd (ACN 614 471 984) (First Plainitff) (No Appearance)
Shunjiyuan Investments Pty Ltd (Second Plaintiff) (No Appearance)
183 East Wood Pty Ltd AFT the Eastwood Unit Trust (Receivers and Managers appointed) (Third Plaintiff) (No Appearance)
Junde Hong (Fourth Plainitff) (No Appearance)
LCC Property Development Pty Ltd (Receivers and Managers appointed) (ACN 614 285 531) (First Defendant)
Scott Chan (Second Defendant)
Ippin Textiles Pty Ltd (Third Defendant)
Jia He Family Investments Pty Ltd (Fourth Defendant)
M Wang Family Pty Ltd (Fifth Defendant)
CK Consulting Pty Ltd (Eighth Defendant)
L’Orient Legal Pty Ltd (Twelfth Defendant)
Representation:
Counsel:
J Foley (First Defendant)
Solicitors:
W Advisors (First Defendant)

File Number(s): 2018/00170894
Publication restriction: Nil

JUDGMENT

INTRODUCTION

These are long running multi-party proceedings which have been before the court since 2018. There are now four plaintiffs and seven active defendants. Most of the active defendants have joined together to bring applications to end the proceedings against them.
Before me today is a notice of motion filed 7 September 2023 by the first defendant, LCC Property Development Pty Ltd (Receivers and Managers appointed), which seeks an order pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the proceedings against it by the first, second and fourth plaintiffs (respectively Winau Aust Pty Ltd, Shunjiyuan Investments Pty Ltd and Junde Hong) be dismissed for want of due despatch (Motion).
LCC Property does not seek the further orders with respect to security for its costs contained in the Motion.
Originally, notices of motion filed 10 October 2023 by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 1355
Decision Date: 09 November 2023

CaseChat Overview and Summary

The parties involved in the case were Winau Aust Pty Ltd, the plaintiff, and LCC Property Development Pty Ltd, the defendant. The dispute was centred around proceedings that had been dismissed for lack of due despatch. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the dismissal of the proceedings for want of due despatch was justified, and if so, whether it was appropriate to consider the matter as one of principle.

The court needed to determine whether the dismissal was warranted given the circumstances of the case and the applicable legal principles. Specifically, the court had to assess whether the plaintiff had demonstrated sufficient diligence in pursuing the proceedings and whether the delay could be attributed to factors within their control. The court also considered whether the dismissal was a matter of principle or whether it could be resolved on the facts of the case. The court's decision hinged on a careful review of the procedural history, the actions taken by the parties, and the applicable legal standards.

After reviewing the evidence and arguments presented by both parties, the court concluded that the dismissal was not a matter of principle but rather a procedural issue. The court found that the plaintiff had not acted with the necessary diligence to maintain the proceedings, leading to the dismissal. The court emphasised that while the dismissal was appropriate, it did not set a precedent that would bind future cases. The court's decision was based on the specific facts and circumstances of this case, rather than establishing a broader legal principle.

In its final orders, the court confirmed the dismissal of the proceedings for want of due despatch. The court clarified that this decision did not establish a new legal principle but was a result of the particular procedural failings observed in this case. The court's ruling underscored the importance of procedural diligence in maintaining legal proceedings and highlighted the consequences of failing to act with reasonable promptness.

Orders