Gumbleton v Hewitt

The Claim 1HIS HONOUR: The proceedings before me were commenced by originating Summons filed on 10 November 2011, in which the Plaintiff, Edward Gary Gumbleton, relevantly, seeks the following final relief: "1. A declaration that the plaintiff and defendant entered into a partnership for the purchase and raising of a herd of cattle (Partnership) as and from June 2006. 2. An order pursuant to section 35(c) and/or section 35(d) and/or section 35(f) of the Partnership Act 1982 (NSW) that the Partnership be dissolved as and from 26 November 2010, or alternatively, upon the payment in accordance with accounts taken. 3. A declaration that the defendant is liable to repay the moneys borrowed by him from the partnership in the sum of $79,400.00. 4. An order that the proceedings be referred to an Associate Judge of the Equity Division of the Supreme Court for the taking of accounts of the Partnership in order to determine the net profit or loss of the Partnership and inquiry into the amount, if any, payable upon the taking of accounts. 5. An order that the defendant pay the costs of the referral of the proceedings to the Associate Judge with liberty to the defendant to apply to the Associate Judge for some other or different order depending on the outcome of the account. 6. An order that the proceedings be reserved for further consideration and, after the determination by the Associate Judge of the account, the parties cause the matter to be re-listed for orders as to the distribution of profits and losses and interest on any amount payable. 7. Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW)." 2The Defendant named in the Summons is John P Hewitt. He has, to date, taken no part in the proceedings. He has not appeared on any occasion when the matter has been listed before the Registrar and he did not appear when the matter was called before me today. He has not entered an Appearance. 3These reasons will not identify the exact address of any party in conformity with the Court's policy of reducing the risk of identity theft through the Court's published judgments. 4On 24 April 2012, Registrar Musgrave listed the matter, for hearing, on 28 May 2012 before me. 5On 23 May 2012, my Associate contacted the Plaintiff's solicitors to ascertain whether the matter was, in fact, proceeding, as previous directions made by the Registrar did not seem to have been complied with. There was also no evidence, on the court file, that the Defendant had been given any notice of the hearing date, by the court, or otherwise, as he had not appeared when the Registrar listed the matter for hearing. 6On 24 May 2012, the Plaintiff's solicitors delivered the Court Book to my Chambers. 7On 25 May 2012, the Plaintiff's counsel, Mr DJA Mackay informed my Associate, by email, that an application for an adjournment would be made as "the Plaintiff does not have sufficient evidence of the service of the notice of hearing upon the Defendant". 8On 28 May 2012, at about 10:10 a.m., the trial of this matter commenced. Mr Mackay appeared for the Plaintiff and made an application for the hearing date today to be vacated (or in terms of the rule, for the trial to be adjourned). The matter was called three times outside the court. The Defendant did not appear himself. No legal representative appeared on his behalf. 9Uniform Civil Procedure Rules rule 29.7, relevantly, provides: "29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court: (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. ..." 10It was not submitted that the matter should proceed upon the basis that the Defendant was in default of filing an Appearance (UCPR rule 6.10(1)(b)) or that no notice of the hearing date need be given to him because of his default. 11Mr Mackay, apparently, was aware of what I had written in French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584, at [16] - [17], namely that whilst the court may be satisfied that a party was "absent", that is, he, or she, was not physically present, at the trial, and was not represented, a party is "absent" within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial. Therefore, it is necessary for the party seeking to proceed to establish that notice of the date for the trial and that it was to then proceed has been brought to the Defendant's knowledge or notice. 12Counsel for the Plaintiff accepted that the onus of proving service of the Summons, affidavit in support, the order for substituted service, and any correspondence establishing notice of the date for hearing and that the matter was to proceed on that date, falls on the Plaintiff.