Young & Anor v Outtrim
[2010] NSWSC 1283
•29 September 2010
NEW SOUTH WALES SUPREME COURT
CITATION:
Young & anor v Outtrim [2010] NSWSC 1283
JURISDICTION:
Equity Division
Duty List
FILE NUMBER(S):
2009/288577
HEARING DATE(S):
29 September 2010
EX TEMPORE DATE:
29 September 2010
PARTIES:
Suzanne Elizabeth Young (first plaintiff)
Julie Louise Grainger (second plaintiff)
Marci Anne Outtrim (defendant)
JUDGMENT OF:
Brereton J
LOWER COURT JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not Applicable
LOWER COURT JUDICIAL OFFICER:
Not Applicable
COUNSEL:
M Thompson
M Painter
SOLICITORS:
Gerard Malouf & Partners (plaintiffs)
Mason Lawyers Newcastle (defendant)
CATCHWORDS:
PROCEDURE – whether Court has power to set aside order of dismissal under UCPR r 13.6. – COSTS – Legal practitioner – where costs incurred as a result of solicitor’s oversights and omissions
LEGISLATION CITED:
(NSW) Civil Procedure Act 2005 s 99(1)(b), s 99(2)
(NSW) Family Provision Act 1982
(NSW) Uniform Civil Procedure Rules 2005 r 13.6, r 36.16
CATEGORY:
Procedural and other rulings
CASES CITED:
TEXTS CITED:
DECISION:
Order dismissing proceedings pursuant to UCPR r 13.6 be set aside. Plaintiff’s solicitor to pay the defendant’s costs of the notice of motion.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST
BRERETON J
Wednesday, 29 September 2010
2009/288577 Young & Anor v Outtrim
JUDGMENT (ex tempore)
HIS HONOUR: On 20 July 2010, the Registrar made an order dismissing the proceedings pursuant to (NSW) Uniform Civil Procedure Rules 2005 r 13.6.
Although there is no express power to restore proceedings so dismissed, I am satisfied that UCPR r 36.16, which empowers the Court to set aside a judgment or order, inter alia if the order was made in the absence of a party and, whether or not it had notice of the relevant hearing, is sufficient to authorise the Court, in the circumstances, to set aside the order dismissing the proceedings.
The non-appearance has been explained by the plaintiff’s solicitor, in circumstances where it is clear that it was due to a series of oversights and omissions by that solicitor, who accepts responsibility for them. No prejudice will be occasioned to the defendant by reinstating the proceedings, other than that she will have to defend proceedings which she otherwise would have had to defend in any event. If the proceedings are not reinstated, the plaintiffs will lose forever their claim for provision under the (NSW) Family Provision Act 1982, and their delinquency was not such as to justify imposing that disadvantage on them. The defendant did not make any submission against reinstating the proceedings.
Accordingly, I order that the order made by the Registrar on 20 July 2010 dismissing the proceedings be set aside.
The plaintiff seeks leave to file and serve an amended summons; that leave is not opposed.
I therefore grant leave to the plaintiff to amend the summons by filing an amended summons in the form annexed and marked with the letter "A" to the notice of motion filed 20 September 2010. I direct that the amended summons be filed within seven days.
So far as costs are concerned, the plaintiff should pay the costs occasioned by the amendment. As the necessity for the present motion was occasioned by the repeated oversights and omissions of the plaintiff’s solicitor I am, on the material presently before me, of the view that those costs can be said to have been incurred, "without reasonable cause in circumstances for which a legal practitioner is responsible", within (NSW) Civil Procedure Act 2005, s 99(1)(b), and that the solicitor concerned should bear those costs.
As formal notice has not been given to the solicitor, but in circumstances where the solicitor’s employee’s affidavit accepts responsibility for the events which have happened, and counsel for the plaintiff has indicated that he does not anticipate that such an order would be opposed, I will reserve leave to the solicitor to apply by notice of motion filed within seven days to vary or set aside the costs orders, insofar as they effect him, lest the solicitor, on reflection, wishes to put any contrary arguments to the Court.
I order that the plaintiff pay the defendant’s costs occasioned by the amendment of the summons.
Pursuant to Civil Procedure Act s 99(2) I order that the plaintiff’s solicitor, Vrege Kolokossian, pay the defendant’s costs of the notice of motion filed 20 September 2010, excluding any costs associated with the amendment of the summons and that the said solicitor not be entitled to recover costs as between solicitor and client in respect of that motion.
I order that the costs payable by the said solicitor to the defendant may be assessed forthwith.
By way of further directions: I direct that each party may adduce evidence from an expert occupational therapist as to the ability of the first plaintiff to engage in activities of daily living. I direct that the plaintiffs not be entitled to rely at the hearing on any evidence which has not been served by 13 October 2010, without the further leave of the Court. I direct that the defendant not be entitled to rely, without the further leave of the Court, on any evidence which has not been served by 3 November 2010. I adjourn the proceedings to the Family Provision List on Tuesday, 9 November 2010.
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LAST UPDATED:
5 November 2010
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