Zarfati v McMillan (No 2) - [2023] NSWSC 1414

Supreme Court

New South Wales

Medium Neutral Citation: Zarfati v McMillan (No 2) [2023] NSWSC 1414
Hearing dates: 9 November 2023
Date of orders: 9 November 2023
Decision date: 09 November 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
See [22] and [23]

Catchwords:
CIVIL PROCEDURE – Dismissal of Proceedings – self executing orders previously made by consent – where plaintiff has not complied with prior self-executing orders – recording dismissal – no point of principle
CIVIL PROCEDURE – Judgments and Orders – liberty to apply – not appropriate where liberty sought to vary substance of orders made

Cases Cited:
Dowdle v Hillier [1949] 66 WN (NSW) 155
Georges v Peter Wieland [2010] NSWSC 1378
Phillips v Walsh (1990) 20 NSWLR 206
Zarfati v McMillan [2023] NSWSC 839

Category: Procedural rulings
Parties: Frank Zarfati (Plaintiff)
Robert McMillan (Defendant)
McMillan Investment Holdings Pty Ltd (Second Defendant)
Representation:
Counsel:
M Waters (Plaintiff) (until excused)
J Svehla (Defendant)
Solicitors:
Pope & Spinks Solicitors (Plaintiff) until 8 November 2023
Somerset Ryckmans (Defendant)

File Number(s): 2020/00163152

REVISED EX TEMPORE JUDGMENT

The proceedings were listed for directions, to the extent necessary, today, 9 November 2023, as a result of order 10 made on 21 April 2023. Mr Svelha appears for the defendants and Ms Waters said that she appeared for the plaintiff. As I understand the Court file and the electronic records, however, there is no notice of appearance filed by Ms Waters' instructing solicitors.
The situation appears to be that Mr Pope, who previously was the solicitor on the record for the plaintiff, filed a notice of ceasing to act on 8 November 2023, having previously complied with the requirements of giving notice in that regard. I was not aware, at the time Ms Waters announced her appearance, that no notice of appearance had been filed. If I had been so aware, I would have asked for an undertaking that her instructing solicitors file such a notice.
Nonetheless, Ms Waters initially applied for an adjournment of the proceedings, on the basis that she and her instructing solicitors had only very recently been engaged by the plaintiffs. In light of the orders made on 21 April 2023, by consent, and the fact that they required the plaintiff to pay certain amounts by certain dates, in default of which, the proceedings would be dismissed, I inquired of Ms Waters whether her client was in a position to pay the amounts determined in accordance with those orders.
Ms Waters took instructions on that matter and informed the Court that the plaintiff was not in a position to pay those amounts and would not be likely to be in a position to pay them in the foreseeable future. In those circumstances, Ms Waters said that she did not press her application for an adjournment. For this reason, I did not need to consider any adjournment application further. Ms Waters sought to be excused from further attendance and she was excused.
Having outlined the circumstances of the hearing on 9…

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 1414
Decision Date: 09 November 2023

CaseChat Overview and Summary

The case of Zarfati v McMillan (No 2) was heard in the Supreme Court of New South Wales. The dispute involved the plaintiff, Zarfati, and the defendant, McMillan, and centred around the plaintiff's failure to comply with previously issued self-executing orders that had been made by consent. The court was asked to record the dismissal of the plaintiff's proceedings due to non-compliance with these orders.

The primary legal issue before the court was whether the plaintiff's non-compliance with the self-executing orders justified the dismissal of the proceedings. Additionally, the court needed to determine whether it was appropriate to grant the plaintiff liberty to apply to vary the substance of the orders that had been made. The court had to balance the plaintiff's right to seek relief against the need to enforce compliance with court orders.

The court found that the plaintiff's non-compliance with the self-executing orders was a significant factor that warranted the dismissal of the proceedings. The court reasoned that the orders were self-executing and had been made by consent, which meant they were binding and required compliance. The court emphasised that there was no point of principle that necessitated a departure from this well-established principle. Furthermore, the court held that it was not appropriate to grant the plaintiff liberty to apply to vary the substance of the orders, as doing so would undermine the integrity of the court's earlier decision. The court concluded that the dismissal of the proceedings was warranted and recorded its decision accordingly.

Orders