Coates Hire Operations Pty Ltd v Coleman

Cases Cited: Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Ergashova v Aslan [2025] NSWCA 207
Ghosh v 9MSN Pty Limited [2015] NSWCA 334
Hoser v Hartcher [1999] NSWSC 527
Murden v NM Superannuation Pty Ltd as trustee of the AMP Super Fund [2025] FCA 148
Perpetual Corporate Trustee Limited v Colevski [2025] NSWSC 387
Stollznow v Calvert [1980] 2 NSWLR 749
Witten v Lombard Australia Ltd [1968] 2 NSWLR 529

Texts Cited: Nil.

Category: Procedural rulings

Parties: Coates Hire Operations Pty Limited ACN 074 126 971 (Plaintiff)
Kayne Robert Leslie Hutton Coleman (Defendant)

Representation: Counsel:
L Moussa (Plaintiff)
J Hastie (Defendant)
Solicitors:
Oakbridge Lawyers (Plaintiff)
Mills Oakley (Defendant)

File Number(s): 2024/00377550

Publication restriction: Nil.

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 11 November 2025 by the defendant, Mr Coleman, seeking an order that the proceedings be dismissed pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). Alternative other remedies are sought.

2. In support of the application, Mr Hastie, of counsel, who appeared for the defendant, read the affidavits of Mr Coleman of 12 November 2025 and Dale Francis Cliff of 11 November 2025. Ms Moussa, of counsel, who appeared for the plaintiff, read the affidavits of Ammaar Ali dated 22 July 2025 and Sylvia Atsalis dated 7 October 2025. The Court also had before it the exhibits to the various affidavits.

3. The background to the matter is that on 11 October 2024, the plaintiff filed a Statement of Claim seeking approximately $176,000 in damages and pleaded that it entered into an agreement with a company, of which the defendant was a director at all relevant times, for the hire and supply of equipment. It is pleaded that invoices were forwarded in relation to the supply and hire of equipment, which were not paid. It is also pleaded that the defendant, Mr Coleman, guaranteed the obligations of the company in the agreement which is said to have been executed by him. The agreement, it is said, was signed as guarantor by the defendant on 6 May 2021

4. A Defence was filed on 17 January 2025, pleading, firstly, that Queensland law applies in relation to the agreement, and secondly, that the defendant, Mr Coleman, did not sign as guarantor, and accordingly, the plaintiff could not enforce the guarantee.

5. Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows:

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

6. The Court has had the distinct advantage of written and comprehensive oral submissions on behalf of the parties. The Court was particularly helped by the oral submissions which have been made.

7. In general terms, the submissions made in summary are as follows. On behalf of the defendant/applicant, it is submitted that:

(a) the plaintiff has been in breach of orders made by the Court in relation to the filing of its evidence in chief on a number of occasions; (b) although an indication is made by counsel for the plaintiff from the bar table that an affidavit served in draft by the plaintiff on the defendant on 7 November 2025, will be signed soon and served soon and that there was a mistake that it was not signed and not filed, there is no evidence to that effect; (c) the Court generally has no adequate or sufficient explanation from the plaintiff in relation to the failure to comply with orders of the Court; (d) the affidavits relied on provide explanations as to historic failures, but there has been nothing in relation to more recent events; (e) the various authorities relied upon have dismissed proceedings for want of due despatch even where material ordered was provided and served shortly before the hearing; (f) there has simply been no efficient and proper advancement of the case by the plaintiff; (g) consistent with sections 56 to 59 of the Civil Procedure Act 2005 (NSW), that the failure to provide an adequate explanation or evidence in relation to the failure, are significant factors to be taken into account, and would strongly support the exercise of the discretion to dismiss the proceedings; and (h) the entire conduct of the plaintiff in the prosecution of the proceedings has shown a failure and virtual disdain for the orders of the Court in the serving of evidence as ordered.

8. Counsel appearing for the plaintiff submitted as follows:

(a) the plaintiff has not been a “reluctant gladiator” to use the phrase used in some of the authorities in relation to delayed proceedings; (b) the evidence in the affidavits of Ammaar Ali and Sylvia Atsalis shows that the plaintiff has taken numerous steps to attempt to obtain evidence which it could serve, and it has largely, if not entirely, been frustrated by other persons not complying with undertakings or promises to provide evidence and not producing documents; (c) although there is no explanation more immediately of the failure to serve evidence, the history of the matter shows that the plaintiff has engaged with the process and is attempting to comply with the orders of the Court; (d) the Court, in the exercise of its discretion, would hesitate to make orders of the nature sought and that the discretion should be exercised only in a clear case where it is manifestly warranted; (e) that each case depends upon its own facts and that a proper analysis of the whole of the evidence would mean that a dismissal order would be inconsistent with the interests of justice; (f) the plaintiff would readily agree to an order that any affidavit and any outlines of evidence to be relied upon should be served within seven days with a guillotine order.

9. Mr Hastie responded that it was no answer to refer to the service of the draft affidavit on 7 November 2025. He asked, rhetorically, what was the defendant supposed to do with that affidavit: assume that it would be sworn and in that form or in some other form? Mr Hastie also submitted that the submissions of counsel for the plaintiff were inconsistent with the decision of the Court of Appeal in Ghosh v 9MSN Pty Limited [2015] NSWCA 334, where it was held that the order could be made in an appropriate case, even if there had been late engagement by the party in compliance with the order.

10. The principles to be applied in considering whether to make the orders sought are fairly clear. I refer to the various factors set out by Justice Simpson in Hoser v Hartcher [1999] NSWSC 527 at [20]. Her Honour said that a number of principles were relevant, but the list set out was not intended to be exhaustive and they include the following:

(a) the ultimate question is whether on balancing the prejudice to the respective parties by making or not making the order, justice demands that the action be dismissed; (b) the discretion should be exercised only in a clear case where it is manifestly warranted and each case depends on its own facts without rigid formulae being applied; (c) any explanation offered by the plaintiff for the delay must be considered; (d) personal blamelessness on the part of the plaintiff as distinct from any tardiness or other fault on the part of his or her legal representative is relevant; (e) delay between the date the cause of action arose and the commencement of the proceedings may be relevant; (f) the onus lies on the defendant to establish any prejudice upon which reliance is placed; (g) the prospects of success were a relevant factor.

11. In more recent cases, slightly more general principles have been stated. In the Ghosh decision, above, the principal decision was given by Justice Macfarlan (with whom Leeming JA and Adamson J agreed). Ghosh has been followed in later cases. Various factors were referred to in the authorities which his Honour quoted, including:

(a) whether there had been a wholesale failure by the party to engage with the processes of the Court, which revealed an arrant disregard for the importance of doing so; (b) that the decision of the Court is an evaluative decision; (c) the discretion to dismiss conferred if the plaintiff does not proceed with due despatch is broad and should not be confined by rigid formulae; (d) relevant delay in this context is not confined to that which is caused by a lack of activity, but extends to a delay arising out of a want of “constructive activity”; and (e) the factors in sections 56 to 60 of the Civil Procedure Act should be taken into account. See at [37]–[43].

12. In Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75, Kirk JA quoted Walsh J in Witten v Lombard Australia Ltd [1968] 2 NSWLR 529 at 534, where his Honour said that:

“[A] balance must be struck between the plaintiff and the defendant and, in the end, ‘the court must decide whether or not on balance justice demands that the action should be dismissed’ …”

13. Kirk JA noted that everything must depend on the circumstances disclosed in each particular case and it was proper to consider any explanation or excuse and whether it was credible or satisfactory and also prejudice to the opposing party.

14. His Honour then referred to the various cases which have considered the rule and the previous iteration of the rule, including the classic decision in Stollznow v Calvert [1980] 2 NSWLR 749. His Honour emphasised the relevance of the matters set out in ss 56 to 60.

15. Ghosh, and the comments of Walsh J in Witten, were emphasised again as being applicable by the Court of Appeal in Ergashova v Aslan [2025] NSWCA 207 at [43]–[44]. The statement by Macfarlan JA about the importance of “constructive activity” was referred to and the fact that the power is a discretion was mentioned again.

16. The most recent helpful commentary is by Faulkner J in Perpetual Corporate Trustee Limited v Colevski [2025] NSWSC 387. There his Honour said that the relevant rule provides a judicial discretion. In accordance with authorities, the discretion was one where the Court must strike a balance between the parties to decide whether or not, on balance, justice demands that the action be dismissed: at [44]. I refer in particular to the various matters referred to in the paragraphs thereafter at [45]–[58]. In that case, his Honour described the guarantor’s history of non-compliance as “prolonged and chronic”.

17. Mr Hastie also referred to the helpful comments of Justice Derrington in Murden v NM Superannuation Pty Ltd as trustee of the AMP Super Fund [2025] FCA 148 at paragraph 24 and following, referring to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, and that the emphasis in the light of Aon was on whether a party has had a sufficient opportunity to present the case. His Honour referred to as a significant and “indeed insurmountable difficulty”, the absence of any explanation in relation to an earlier pleading of the matters then relied upon.

18. It seems to me that the following may be noted about the matter:

(a) the plaintiff company asserts that the defendant is responsible as a guarantor in relation to the agreement executed; (b) the defendant denies that it his signature on the guarantee; (c) it was then incumbent on the plaintiff to take all steps to establish through direct evidence or expert evidence or indirect evidence that the guarantee was signed by the defendant.

19. The evidence before me establishes that the plaintiff attempted to do that through obtaining evidence from the apparent witness to the execution of the guarantee, Ms Mostyn. However, they have been unsuccessful on the evidence but they have spoken to Mr Mostyn, who I assume is her partner or spouse, who asserts that he has documents highly relevant to the execution by the defendant. The plaintiff has taken steps to subpoena and follow up that matter on a number of occasions without success.

20. In my view, the following factors are to be noted:

(a) it cannot be said that the plaintiff has not attempted to advance the matter, as it must being the plaintiff, by taking appropriate steps early in the proceedings; (b) however, the plaintiff has breached a number of orders made by the Court, including extensions for the filing of its evidence. Orders are orders and they must be complied with, unless they are extended on a proper basis. It is clear that the Judicial Registrar accepted that the plaintiff had taken steps to obtain the evidence and that was the reason for the extension granted; (c) in the present application, it is highly regrettable that the plaintiff has not put on evidence in relation to the recent delays, in particular in relation to the affidavit served unsigned, on 7 November 2025. That is a failure in the plaintiff and it should have provided an adequate explanation; (d) there is some force in Mr Hastie’s submissions that the Court is placed in a position where there have been a series of orders not complied with, albeit that some explanation is provided in the affidavits, and no proper or adequate explanation of recent delays; (e) Counsel for the plaintiff has indicated from the bar table that it is expected that the affidavit will be signed and filed shortly. There is, however, no evidence to that effect.

21. The options for the Court seem to me to be:

(a) to dismiss the proceedings pursuant to rule 12.7 of the Uniform Civil Procedure Rules, as counsel for the defendant has submitted is the appropriate course; or (b) give a very short period for the plaintiff to serve evidence in support of its case.

22. An important factor is the absence of an explanation. However, I also take into account that there is some evidence of earlier attempts to obtain the required evidence. The discretion is a general one. It is not bound by rigid formulae. The final nature of the order means that it must be a clear case where it is warranted to make the order dismissing proceedings.

23. Taking into account all of the matters, I am not satisfied that it is appropriate to dismiss the proceedings for want of due despatch at this time.

[Orders were then discussed with counsel.]

24. An application has been made by counsel for the defendant for a guillotine order or what has been described recently as a “conditional order” to the effect that proceedings be dismissed if an affidavit is not filed within seven days. In my view, it is inappropriate to make such an order, but it is quite clear what the intention of the Court is from the order proposed to be made and I decline to make the order in the exercise of my discretion.

25. The issue has arisen in relation to the appropriate order to be made as to the costs of the Notice of Motion. Ms Moussa, who appears for the plaintiff, submits that costs should be costs in the cause. Mr Hastie, who appears for the defendant/applicant, submits that his client should have an order in its favour with leave to have the costs assessed forthwith and upon assessment, such costs to be paid immediately.

26. I have taken into account all the factual history in the matter. There have been a number of breaches by the plaintiff. In my view, the filing of the Notice of Motion was appropriate, and this is a case where, despite failure in the Motion, in my view, the defendant is entitled to an order for costs. The question is whether leave should be given to have the costs assessable now and upon assessment to be paid forthwith.

27. The Court proposes to make a short timetable for the filing of evidence. In my view, taking into account the authorities relating to the circumstances in which such an order is appropriate, there will not be an extensive delay until the finalisation of the matter. I decline therefore to make that additional order.

28. I make the following orders:

29. The Notice of Motion is dismissed.

30. The plaintiff is to file and serve within seven days:

(a) Any affidavits on which it wishes to rely, and (b) Outlines of expected evidence from any witnesses it believes it will subpoena.

3. No affidavits or statements of evidence in chief served after 5pm on 27 March 2026 by the plaintiff may be relied upon without an order from the Court obtained following the filing of a Notice of Motion.
4. The plaintiff is to pay the defendant’s costs of the Notice of Motion as agreed or assessed.
5. The defendant is to file and serve any responsive affidavit evidence by 17 April 2026.
6. The plaintiff is to file and serve any reply evidence by 1 May 2026.
7. The matter is listed for hearing on 10 June 2026 with an estimate of two days.
8. The standard orders for hearing are made.
9. Liberty to apply on 2 business days’ notice.

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