HAMILL J: The first and second defendants in these proceedings seek an order that the summons filed by the plaintiff on 4 January 2019 be dismissed. The case has an unfortunate procedural history and a background suggesting that many of the matters raised in the summons have previously been litigated.
The application concerns the proceedings commenced by the plaintiff, Daily Catch-Up Pty Limited, by summons filed on 4 January 2019. That summons purported to be an appeal or, perhaps, more correctly, an application for leave to appeal against an order made in the Local Court summarily dismissing civil proceedings brought by the plaintiff against the defendants. The grounds of appeal and the particulars of those grounds are set out in the summons as follows:
"APPEAL GROUNDS
1. The court erred in law to dismiss the proceedings pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) on the grounds that:
a. His Honour did not have sufficient or any evidence, and therefore did not have the high degree of certainty, supported by affidavit, to give rise to a view that the plaintiff's claim:
i. was unmeritorious.
ii. had no reasonable chance of success.
iii. had no reasonable cause of action.
iv. had a tendency to cause prejudice embarrassment or delay in the proceedings.
v. was an abuse of process of the court.
b. In ordering that the plaintiff pay the costs of the 1st and 2nd defendants.
c. In entering a [judgement] before the claim had been determined.
Rule 50.12 (4) Particulars
1 The case in the lower courts involved the claim by the plaintiff being the owner of the vehicle. The vehicle was in the possession of the 1st and 2nd defendants for a period of approximately 8 years. The 1st and 2nd defendants claimed to have repaired the motor vehicle and gave assurance and warranty and also provided a blue slip to assure that the vehicle was driveable and in compliance with the rules and regulations. On that assurance and warranty, the plaintiff took the vehicle on a "as is where is" basis. Upon examination of the vehicle after the vehicle being released in the possession of the plaintiff, it was reported by experts that the vehicle was not repaired to ensure that it was driveable and in compliance with the rules and regulations.
2 Leave is required pursuant to section 40(2){a) of the local Courts act on the basis that the whole decision made by the lower court was a interlocutory order.
3 The leave to appeal is made pursuant to rule 50.12 of the UCPR.
4 His Honour acted on evidence which had not been admitted, took into account facts which were not relevant, admitted as evidence submissions made by counsel for the 1st and 2nd defendants.
5 In making the decision,, his Honour denied the plaintiff the natural justice to have their case heard and determined, thus causing substantial injustice and prejudice to the plaintiff'.
6 His Honour's discretion miscarried and the effect of that order was to deny due process."
The order, against which the plaintiff sought to appeal, was made on 10 December 2018. It seems that the basis upon which the Magistrate made the order for summary dismissal was that the case that the plaintiff sought to present was unmeritorious, had no reasonable chance of success, disclosed no reasonable cause of action, had a tendency to cause embarrassment, hardship or delay and was an abuse of process:
"The crux of the first and second defendants' notice of motion seeking to summarily dismiss the proceedings or to strike out the plaintiff's statement of claim, or in the alternative to stay the proceedings pursuant to s 67 of the Civil Procedure Act, is based on para 3(c) of the deed in which Daily Catch-up Pty Ltd acknowledges and agrees to accept the vehicle on an 'as is where is' basis. The vehicle underwent numerous repairs, and in an attempt by the parties to bring an end their respective rights and obligations ancillary to the previous plaint 2016/252123, all of the outstanding claims, allegations, denials, rights and obligations were reduced to writing, and each party joined issue with the conclusion of the proceedings to finality. That was to take place in part by virtue of the execution of the deed of release, and in part by virtue of the filing in the registry of consent judgment in accordance with cl 2.4...
…It is to be remembered that the exercise of the Court's power to summarily dismiss proceedings is a discretionary remedy, and that the more complex and arguable the legal point, or the more dependent it may be on debatable factual premises, the less likely that summary disposal will be appropriate. On the other hand, where there can be no dispute on the facts, there is often little point in an application for summary disposal, and the preferable course is to proceed expeditiously to a final hearing. The decision of Sidebottom v Cureton [1937] 54 WN (NSW) 88 is authority for the proposition that summary judgment will not be granted where there is any serious conflict as to a matter of fact. The power to order summary judgment should be exercised with great care, and not unless it is clear that there is no real reason to be tried.
This brings me to the submission made by Mr Bicanic for the plaintiff and responded to the notice of motion to the effect that there is indeed a triable issue, and it ought to be dealt with in the fullness of time on its merits. With great respect, I struggle to see where the triable issue lies when one looks more closely to the construction of the deed of release containing the four material obligations to which I referred, the six ancillary obligations to which I referred, and the overarching bar to proceedings clause in cl 4.4, in circumstances where all of the parties' negotiations, discussions, communications, merged and were reduced to writing, by virtue of an executed deed of release binding on those respective parties. When one considers the application against that backdrop, the ultimate conclusion to be arrived at is that there is, on the balance of probabilities, and as a finding of fact, no debatable factual premises on which the statement of claim is founded, and on which the application can be resisted. That being the case, I make the following orders and notations
FOR THE MATTER OF DAILY CATCH-UP PTY LTD AND TYNAN MOTORS, AND ANOTHER ONE, ON THE FIRST AND SECOND DEFENDANTS' NOTICE OF MOTION FILED 12 NOVEMBER 2018, THE PLAINTIFFS' STATEMENT OF CLAIM IS DISMISSED PURSUANT TO RULE 13.4 OF THE CIVIL PROCEDURE RULES."
To understand the decision of the Magistrate and the application now made to dismiss the summons, it is necessary to set out briefly the background of the litigation of the earlier proceedings. The earlier proceedings arose out of a cross claim made by the present plaintiff in proceedings numbered in the Local Court 2016/00252123. I will refer to those proceedings as "the earlier proceedings".
The earlier proceedings concerned a dispute over the fitness of a car for its intended purpose. The present plaintiff entered into a contract to purchase the car. The dispute arose after it took delivery of the car. There appears to have been certain complications and factual disputes between the parties as to that issue. But, for today's purposes, it is unnecessary to consider the dispute any further other than to say that the first defendant in the present proceedings, which is Tynan Motors, was not a party to the earlier proceedings, but that the second defendant in the present proceedings, FCA Australia, was the cross defendant.
At first blush, and, indeed, I think on closer examination, there are a number of common features between the dispute subject of the earlier proceedings and the present dispute. The earlier proceedings were subject to a deed of settlement signed in July 2018. The deed was signed on behalf of the present plaintiff by Mr M Zreiker. There may then have been a consent judgment on 12 July 2018 based around the content of that deed. In short, there was a judgment for the cross defendants and an order for costs in the sum of $12,500.
The present plaintiff then did two things. First, on 30 August 2018, he sought an order staying FCA from entering judgment pursuant to the deed. That application was dismissed on 4 September 2018 and the Magistrate made a number of orders including judgment for the present defendant and an order that the present plaintiff pay costs. Those orders were in accordance with the deed of settlement.
On 16 October 2018 the plaintiff commenced a new set of proceedings this time as the plaintiff (as opposed to the cross claimant) for a breach of contract arising from the sale or purchase of the same motor car which was the centre of the dispute litigated in the earlier proceedings, and the subject of the deed of settlement. As I understand it, the costs of the first proceedings have never been paid and there has been no appeal against the orders made by the Magistrate.
The defendant in the present proceedings has made a number of enquiries about the status of the plaintiff company and those are set out in correspondence which became Exhibit A this morning. Eventually, the plaintiff company was deregistered on 8 March 2019 and the principal of that company, Mr Zreiker, who was the signatory of the deed of settlement in the earlier proceedings, had indicated in a number of emails an intention to have the company reregistered. However, in essence, nothing has happened to have the company reregistered.
The question today, or at least the first question today, is whether I should, to quote Jordan CJ's words, "do nothing", or whether I should take the alternative approach and "do something", namely, to dismiss the proceedings; United Service Insurance Co Ltd (In Liq) v Lang (1935) 35 SR (NSW) 487. The principles arising when a company like the present plaintiff essentially no longer exists in the course of litigation was set out by Slattery J in Amcus Pty Limited v Hurst Renewals No 2 [2010] NSWSC 239 at [17]-[20]:
"[17] Jordan CJ's statement is clear that upon ascertaining that a plaintiff is dissolved and no longer exists, the court must 'do nothing except refrain from proceeding any further'.
[18] But should the balance of the proceedings be dismissed on both sides as is contemplated by option three or should the Court adjourn the proceedings or make no order as Jordan CJ concludes? Some authorities suggest that proceedings apparently being conducted by a dissolved company can be dismissed: see for example Re Morton; Ex Parte Mitchell Products Pty Limited (1996) 21 ASCR 497 Sweeney & Vandeleur Pty Limited v BNY Australia Limited (1993) 11ACSR 356. But such dismissal should not occur here for two reasons.
[19] First dismissal of the Hurst Rentals cross-claim goes further than Jordan CJ identified in United Service Insurance Co Ltd (In Liquidation) v Lang as the correct course to deal with the pleadings of a dissolved corporate plaintiff. Cases where a dismissal has occurred usually involve other factors such as defective pleadings otherwise justifying their being struck out (Re Morton; Ex Parte Mitchell Products Pty Limited (1996) 21 ASCR 497) or the sufficiently active pursuit of the case pleaded on behalf of the dissolved company that the conduct could be characterised as an a abuse of process and the pleading struck out on that ground (Sweeney & Vandeleur Pty Limited v BNY Australia Limited (1993) 11ACSR 356). Neither of those factors has been argued to be present here.
[20] Second, Amcus does not propose that its own pleaded cause of action against Hurst Rentals be dismissed. Nor does it consent to such a course. Were Hurst Rentals still in existence and the Court were being asked to decide the proceedings Hurst Rentals brings against Amcus, the findings in my principal judgment would be inconsistent with the dismissal of this Amcus action. The Court should not dismiss the Amcus action."
Mr Elliott, who appears on behalf of both defendants, argues that the circumstances arising in the present case fall within those principles set out by Slattery J. In addition to the fact that the second set of proceedings appeared to be an attempt to re litigate matters which were subject to the first set of proceedings, it is also the case that since the matter has been brought to the Supreme Court by way of an appeal from the summary dismissal of the matter in the Local Court, there has been a fairly consistent failure to comply with court orders and case management requirements. The matter has been before the Registrar on a number of occasions. Orders were made for security for costs and, as I understand it, no attempt has been made to satisfy that order.
The matter then went before Harrison J at which time the matter could not proceed because the plaintiff as a company ceased to exist or had been deregistered. His Honour then made orders standing the matter over for six weeks to be listed before the Duty Judge today and, as I perceive it, nothing has been done.
The plaintiff, Mr Zreiker, has been called outside the court three times. There is in the end nothing to suggest that the plaintiff intends to take any steps to advance its summons purporting to appeal against the decision of the Magistrate to summarily dismiss the second set of proceedings.
Even if there were any steps, on the material before me which I accept is limited, any case that the plaintiff would seek to bring would appear to be without any merit whatsoever. Because it seeks to re litigate matters that are already subject to a deed of settlement in earlier proceedings, they also have the potential to embarrass the defendants.
The consequence of that procedural and factual history is that the submissions made by Mr Elliott should be accepted and the summons filed on 4 January 2019 seeking to appeal against the decision of the Magistrate will be dismissed.
In the event that the company, Daily Catch-Up Pty Limited (that is to say, the plaintiff) is reregistered it is to pay the costs of these proceedings.
[2]
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Decision last updated: 15 July 2019