5 Ms Suttor applies by motion filed on 24 September 2007 for dismissal of the accounting proceedings (6141/03), for want of prosecution by Mr Grizonic.
6 The delay complained of by Ms Suttor commences only from mid 2007, and must be seen in the light of their earlier history.
7 The proceedings were commenced by summons filed in early December 2003, by which Mr Grizonic sought orders for and consequential on the dissolution of the restaurant partnership, Da Valentinos. On 19 December 2003, the parties entered into Heads of Agreement which made some provision in respect of the role of their jointly owned real property at East Ryde, the sale of the restaurant business, and the application of the proceeds. However, both parties complained that the other did not perform those Heads of Agreement, and on 13 January 2004, Mr Grizonic applied to set them aside. On 5 February 2004, on Ms Suttor's motion, an order was made for the appointment of receivers and managers to the partnership, and for the taking of accounts of the partnership. On 27 February 2004, on Mr Grizonic's motion, trustees were appointed for sale of the East Ryde property.
8 On 5 August 2004, detailed directions were made for the taking of the accounts. In particular, an order was made that the Ms Suttor by, 31 August 2004, file and serve on Mr Grizonic: (a) her detailed account verified by affidavit of all the dealings and transactions of the partnership and of the partners and each of them in relation thereto, from the commencement of the partnership up to and including 5 February 2004, such account to specify in respect of each payment or receipt the date and amount thereof, to whom the amount was paid, and the purpose or account for or to which the amount was paid, or received, as the case may be; and (b) a detailed statement of what she claimed to be the assets and liabilities of the partnership as at 5 February 2004 and the respective interests of the partners therein, having regard to the liabilities and all other relevant matters.
9 I am prepared to accept, with some reservation, that the material so far filed sufficiently satisfies the requirements of clause (b) of that direction, but it is totally clear that Ms Suttor has never complied with the requirements of clause (a). The material to which I have been taken as answering (a) is not any such account as is required by the rules of court [(NSW) Uniform Civil Procedure Rules, r 46.5] and the practice of this Division. There is no single document which lists chronologically all receipts and payments specifying, as the order requires, the amount and date to whom it was paid, and the purpose or account for which it was paid. There are, at best, documents which partially meet those requirements in respect of part of the history of the partnership.
10 The proceedings were set down for hearing for four days before Rein AJ in July of last year. On the first day of that hearing, Ms Suttor served further evidence which provoked an application on behalf of Mr Grizonic for the vacation of the hearing, which was ultimately agreed. In the context of the application by the defendants for dismissal for want of prosecution, it is highly relevant to bear in mind that a previous hearing was vacated because of the defendants' late service of affidavit evidence.
11 When the proceedings were adjourned by Rein AJ, various directions were made. There were orders and directions in accordance with short minutes of that date, which provided inter alia for the parties, by 5 September 2007, to prepare an agreed bundle of documents. I am content to accept that, in the present context of this case, the idea of anything being done by agreement is a forlorn hope. The directions further made provision for the service by each party on the other of a complete statement of their allegations with respect to any wrongful misappropriation, misapplication or misretention of partnership moneys, responses to those statements by 5 November, and adjournment of the proceedings to 5 December. Provision was also made for the service, by 5 November, of a list of the affidavits upon which each party intended to rely. Additionally, the orders made by Rein AJ provided for a mediation to take place, and for submissions to be served in connection with that mediation. There is no evidence that either party took any of the steps in respect of an agreed bundle, lists of affidavits and the like referred to in Rein AJ's directions. Ms Suttor complains that Mr Grizonic did not comply with the orders in respect of mediation, and that there was no progress towards mediation.
12 Essentially, the gravamen of the allegation of non-prosecution is that, the defendants having indicated agreement to a mediator proposed by Mr Grizonic, their solicitor wrote to Mr Grizonic's then solicitors recording that agreement, but that there was no further reply or correspondence with respect to mediation. It seems to me that, in the light of the history of this case, that is absolutely insufficient to found a suggestion that the proceedings should be dismissed for want of prosecution.
13 Another complaint raised is that, when the matter came before the Duty Judge on 3 September 2007 - the defendants complaining of non-compliance by Mr Grizonic with the directions made by Rein AJ - the proceedings were adjourned to 27 September to allow Mr Grizonic an opportunity to file and serve a motion seeking an order that the equity proceedings and the common law proceedings be consolidated. Although, when Ms Suttor's solicitor - Mr Gallego - swore an affidavit on 24 September 2007, he deposed, no doubt accurately, that no such motion had then been received, a motion claiming such an order was, in fact, filed and served on 21 September 2007.
14 Although this case has an entirely unhappy and unsatisfactory procedural history, the suggestion that it should be dismissed for want of prosecution is without merit. I refuse that application.
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