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[2025] NSWSC 1200
General information, not legal advice.
Supreme Court of NSW
2025-10-13
Ierace J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hermitage v Fargun Bewdy Pty Limited [2025] NSWSC 1200
Hearing dates: 1 October 2025
Date of orders: 3 October 2025
Decision date: 13 October 2025
Jurisdiction: Common Law
Before: Ierace J
Decision: Reasons for orders made on 3 October 2025:
(1) The notice of motion filed on 8 August 2025 by Dianne Verlie French is dismissed;
(2) Dianne Verlie French is to pay the costs of the notice of motion, including the hearing of the motion;
(3) The amended statement of claim filed on 22 June 2023 is dismissed;
(4) The matter is listed before the Registrar on Friday 10 October 2025 for directions regarding the costs of the proceedings.
Catchwords: CIVIL PROCEDURE — Parties — Where plaintiff has died — Application by de facto partner to be substituted as plaintiff — Where amended statement of claim contends breach of contract and contravention of Australian Consumer Law provisions — Deceptive and misleading conduct — Unconscionable conduct — Whether any cause of action claimed or interest in the proceedings is capable of surviving the death of plaintiff — Whether proceedings should be dismissed — Where plaintiff’s case has been dilatory, lacks poor prospects of success and exposes first and third defendants to a real prospect of being unable to recover order for costs
Legislation Cited: Civil Procedure Act 2005 (NSW), s 61
Competition and Consumer Act 2010 (Cth), s 131(1), Sch 2 – Australian Consumer Law, ss 18, 20, 21, 236, 236(1)
Fair Trading Act 1987 (NSW), s 28
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Trade Practices Act 1974 (Cth) (repealed), ss 52, 82, 82(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.30, 6.30(2), 6.31, 6.31(2), 7.10, 7.10(2)(b), 42.21, 42.21(1)(e), 42.21(1A)(a), 42.21(1A)(b), 42.21(1A)(c), 42.21(1A)(e), 42.21(1A)(g), 42.21(1A)(j)
Cases Cited: Bayside Council v Estate of Goodman [2019] NSWSC 530
Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2
Hewitt v Gardiner [2009] NSWSC 705; (2009) 3 ASTLR 407
In the matter of HIH Insurance Limited (in liquidation); In the matter of FAI General Insurance Company Ltd (in liquidation and subject to a scheme of arrangement); In the matter of HIH Casualty and General Insurance Limited (in liquidation and subject to schemes of arrangement) [2018] NSWSC 1886
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203
Zervas v Burkitt (No 2) [2019] NSWCA 236
Category: Procedural rulings
Parties: John Hermitage (Plaintiff)
Fargun Bewdy Pty Limited (First Defendant)
Peter Politis (Second Defendant)
Charles Parisi (Third Defendant)
Representation: Counsel:
H Weller (Sol) (Plaintiff)
A W Smith (First and Second Defendant)
S Clemmett (Third Defendant)
Solicitors:
Herbert Weller Solicitor (Plaintiff)
Hunts Law (First and Second Defendant)
Gilchrist Connell (Third Defendant)
File Number(s): 2022/93985
HIS HONOUR: By a notice of motion filed on 8 August 2025, the applicant, Dianne French, sought an order that would substitute her as the plaintiff in proceedings that were commenced by an amended statement of claim filed on 22 June 2023 (the ASOC) in which the plaintiff was her de facto partner, John Hermitage (the substitution application). At the time of the hearing of the notice of motion, on 1 October 2025, the ASOC proceedings were set down for hearing on 27 October 2025 with an estimate of five days. On 3 October 2025, I made orders dismissing the notice of motion and the ASOC. These are the reasons for those orders.
There are three defendants to the ASOC, which is somewhat opaque in its terms, including as to the nature of the bases of liability, which is relevant to the question of whether there is a cause of action or interest in the proceedings that has survived the death of the plaintiff. If the answer to that question is at least partly in the affirmative, the Court may then proceed to consider whether the substitution of the applicant for the plaintiff is appropriate.
The plaintiff pleaded that in March 2018 he guaranteed a loan of $300,000 to a development company, Omaha Pty Limited (Omaha), apparently secured by a residential property that he owned at Blaxlands Ridge in the Blue Mountains (the Blaxlands Ridge property). The principal of Omaha fell ill and in June 2018, the plaintiff agreed to Omaha being transferred to him as the sole director. In October 2019, Costa Corporate commenced proceedings against Omaha as first defendant and the plaintiff as the second defendant, seeking a monetary judgment.
The plaintiff pleaded that in January 2021, he accepted a proposal made by the first defendant to the ASOC, Fargun Bewdy Pty Limited, and the second defendant to the ASOC, Peter Politis, acting for himself and as an agent for the first defendant, that included conditions that the first defendant would be assigned the Costa Corporate debt and would receive the first $500,000 from proceeds of a claim that the plaintiff had commenced against A Plus Legal, who were the plaintiff’s solicitors who prepared the documentation for the guarantee of the Omaha loan (the A Plus Legal proceedings). Further, the plaintiff would retain the sale proceeds of the Blaxlands Ridge property or an equivalent sum of money. The ASOC states that the second defendant’s representations “were made in trade and commerce”. The plaintiff pleaded that in February 2021, he signed a written agreement in the terms of the oral agreement and kept a copy that was subsequently stolen.
The ASOC further pleads that in about July or early August 2021, the third defendant, Charles Parisi, acting as a solicitor for the first defendant and on his own behalf, “insisted” on negotiating on behalf of the plaintiff with the legal representatives of Lawcover for A Plus Legal and claimed he could achieve a settlement of $1,300,000 with A Plus Legal. In about early August 2021, he made representations to the plaintiff that persuaded him to pay the proceeds of the sale of the Blaxlands Ridge property to the first defendant and to accept an offer that had been made in the proceedings against A Plus Legal of $500,000. The plaintiff pleaded that “The representations made by the Third Defendant … were misleading or deceptive or likely to mislead and deceive”; that they were “made in trade or commerce in connection with the supply of services to a person, namely the giving of legal advice to the Plaintiff, and legal advice to the First Defendant, or both”; and that the second defendant engaged in conduct on his own behalf and as agent for the first defendant that was unconscionable in contravention of ss 20 and 21 of the Australian Consumer Law.
The remedies sought in the ASOC were a judgment sum against the first defendant of $808,224.66, a declaration against the first defendant that it is not entitled to enforce a judgment in its favour against the plaintiff in the A Plus Legal proceedings in the sum of $1,357,383.94, as well as damages against the second and third defendants.
“4. Before the plaintiff passed away, he told me that he wished for me to be the substitute plaintiff and to continue the proceedings against the defendants.
- I am respectfully seeking an order of the Court to be substitute as plaintiff in these proceedings.
- The proposed substitution is appropriate substitute I have been the plaintiff’s de facto since March 2020 and have the knowledge to continue the proceedings.”
“1. I believe that the information contained in this affidavit is true.
- The only assets in which I am aware in the plaintiff’s estate consist of personal belongings and his interest in these proceedings.
- It has been explained to me, and I am aware that upon a verdict for the defendants there is likely to be an order for costs in the proceedings against me.”
By a notice of motion filed on 15 September 2025, the third defendant sought orders that the ASOC proceedings be dismissed either entirely or at least in respect of the third defendant pursuant to r 6.31 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or s 61 of the Civil Procedure Act 2005 (NSW). Alternatively, in the event that the applicant is substituted as the plaintiff in the ASOC proceedings, an order that she provide security for the costs of the third defendant going forward in the sum of $93,395 or in such other amount as the Court determines within seven days, and an order that the proceedings be stayed until the security is provided and ancillary orders pertaining to costs.
In an affidavit in support filed on the same date, the third defendant’s solicitor, Alexander Haslam, provided a procedural history of the ASOC and substitution proceedings, as well as evidence as to the costs incurred to date by the third defendant and the likely costs of the hearing. The third defendant’s costs to date are $115,774.22. The third defendant’s estimate of the costs of the hearing is $73,700.
The solicitor for the first and second defendants, John Hunt, in an affidavit filed on 30 September 2025, adopted the procedural history in Mr Haslam’s affidavit. Mr Hunt estimated that their costs to date are $140,973.52, excluding GST. Their estimate for the hearing, if it runs for five days, is $108,700 excluding GST, which is a total amount of $249,673 plus GST.
Mr Hunt initiated searches of title registries in New South Wales and Queensland for entries in the name of the applicant. There was no record of her being the owner of real property in those states.
“Part 2 Survival of causes of action after death
2 Effect of death on certain causes of action
(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate …”
“6.30 Effect of certain changes on proceedings
(1) Proceedings do not abate as a result of a party’s death or bankruptcy if a cause of action in the proceedings survives.
(2) If a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties.
(3) …
6.31 Court may dismiss proceedings not prosecuted following death of party
(1) This rule applies to any proceedings in which—
(a) a party dies, but a cause of action in the proceedings survives his or her death, and
(b) an order for the joinder of a party to replace the deceased party is not made within 3 months after the death.
(2) The court may order that, unless an application to join a party to replace the deceased party is made within a specified time, the proceedings in relation to the cause of action concerned be dismissed.
(3) An application for such an order may be made by any person to whom the deceased party’s liability in relation to the cause of action concerned has passed (whether or not a party to the proceedings).
(4) On making an order under this rule, the court may give such directions as it thinks fit for service of the order on any person (whether or not a party to the proceedings) who is interested in continuing the proceedings.”
“7.10 Interests of deceased person
(1) This rule applies to any proceedings in which it appears to the court—
(a) that a deceased person’s estate has an interest in the proceedings, but is not represented in the proceedings, or
(b) that the executors or administrators of a deceased person’s estate have an interest in the proceedings that is adverse to the interests of the estate.
(2) The court—
(a) may order that the proceedings continue in the absence of a representative of the deceased person’s estate, or
(b) may appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed.
(3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person’s estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.
(4) Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit.”
“2. Section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) provides that the causes of action against all defendants survive the death of the plaintiff which occurred on the 11th of June 2025.
…
- It is clear that the causes of action against each defendant survive the death of the plaintiff and that Ms French is an appropriate person to be substituted, being the deceased plaintiff’s de-facto spouse.
- The deceased plaintiff’s will dated 14ᵗʰ of March 2025 appointed me as Executor and gave the whole of his estate to be divided equally between Dianne French, Matthew Hermitage and Aiden Hermitage. Matthew Hermitage is the son of the deceased plaintiff and Aiden Hermitage his grandson.”
Mr Weller orally submitted that Mr Hermitage, through the sale of the Blaxlands Ridge property, had lost his only asset of any value, as had the applicant, in terms of her one third interest in Mr Hermitage’s estate. Mr Hermitage had little contact with his son and none with his grandson, so the applicant was the obvious person to be substituted as the plaintiff in the ASOC proceedings. He acknowledged that the inability of Mr Hermitage’s estate and the applicant’s financial situation “is a matter that has to be taken into account”.
The will was not in evidence; the only material before the Court as to its contents was para (7) of Mr Weller’s written submissions. There was no evidence as to the assets of Mr Hermitage’s estate, other than the reference in the applicant’s affidavit noted above at [9], the assets of the applicant, or the attitude of the other two beneficiaries under the will to the substitution application.
In an oral exchange with the Bench, Mr Weller said that he had not applied for a grant of probate of Mr Hermitage’s estate because “there are no assets other than what is in this litigation”. When asked what the applicant’s assets were, should she be substituted as the plaintiff and receive a costs order against her, he said: “Likewise, she owns only personal property … of little value”. When asked whether, as the executor of Mr Hermitage’s will, he had spoken to the other two beneficiaries as to the substitution application, Mr Weller replied that, as to Mr Hermitage’s son: “I have but not in any depth, no”. He said he had not spoken at all to the third beneficiary, Mr Hermitage’s grandson, who he said was not a minor.
Counsel for the first and second defendants submitted that the claim against the first defendant, to the extent that it depends on breaches of the Australian Consumer Law, should be dismissed because the pleaded breaches cannot survive the death of the person who claims to have suffered loss or damage.
The conduct of the first defendant, as alleged in the ASOC, was subject to the Australian Consumer Law pursuant to s 131(1) of the Competition and Consumer Act 2010 (Cth), which provides that:
“Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations.”
Chapter 2 of Sch 2 includes s 18, which is titled “Misleading or deceptive conduct”, and provides that “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. A contravention of s 18, which is what is effectively alleged by the plaintiff, gives rise to a statutory right or relief pursuant to s 236, by way of a claim for loss or damage.
As to whether that right is a cause of action that survives the death of the plaintiff for the purposes of s 2 of the LRMP Act or r 6.30 of the UCPR, or whether the plaintiff’s estate can have an “interest in the proceedings” for the purposes of r 7.10 of the UCPR, the first defendant relied upon judicial consideration of the meaning of s 82 of the Trades Practices Act 1974 (Cth) (the TPA), to the effect that a cause of action under s 52 of the TPA (which is in almost identical terms to s 18 of the Australian Consumer Law), [1] is not assignable because it authorises an award of damages only to the party who personally suffers loss or damage by the contravening conduct. This has the consequence that such a cause of action does not vest in, and is not maintainable by, the deceased estate of the person who suffers loss as a result of contravening conduct: In the matter of HIH Insurance Limited (in liquidation); In the matter of FAI General Insurance Company Ltd (in liquidation and subject to a scheme of arrangement); In the matter of HIH Casualty and General Insurance Limited (in liquidation and subject to schemes of arrangement) [2018] NSWSC 1886 per Brereton J at [40]. See also Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 per Branson J (Spender and Olney JJ agreeing) at 218C–219E.
The counterpart provisions of s 236 of the Australian Consumer Law and s 82 of the TPA are as follows.
Section 236(1) of the Australian Consumer Law provides:
“236 Actions for damages
(1) If:
a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.”
“82 Actions for damages
(1) … a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.”
It was submitted that the differences in these two provisions do not detract from their essential meaning and therefore the statutory construction of s 82(1) of the TPA informs how s 236 (1) of the Australian Consumer Law is to be understood. That being so, there is no cause of action that survives the plaintiff in respect of his claim against the first defendant insofar as it arises from its alleged misleading or deceptive conduct.
As to any claim against the first defendant in contract, counsel submitted that it would be unusual to substitute a person for the plaintiff pursuant to the power in r 7.10, although it is available for that purpose, as an exercise of discretion: Hewitt v Gardiner [2009] NSWSC 705 per Ward J at [87] to [92]. That discretion should be exercised judicially and be guided by considerations of procedural fairness: Bayside Council v Estate of Goodman [2019] NSWSC 530 per Robb J at [188], [195].
If the applicant was substituted for the plaintiff, it was submitted that the proceedings against the first defendant should be listed for directions to determine what, if any, part of the claim against the first defendant remained and the future conduct of the matter, although the ASOC was so poorly defined and pleaded that in due course it should be struck out for want of disclosing a reasonable cause of action.
As to the second defendant, counsel submitted that the proceedings should be dismissed. The plaintiff’s claim appears to be limited to a contravention of s 18 of the Australian Consumer Law. Since the second defendant is an individual, the Australian Consumer Law (NSW) applies, pursuant to s 28 of the Fair Trading Act 1987 (NSW), for reasons explained in Zervas v Burkitt (No 2) [2019] NSWCA 236 per Bell P (Macfarlan and McCallum JJA agreeing) at [52]-[60]. The second defendant relies upon the same reasoning as to the meaning of s 236 of the Australian Consumer Law (NSW) to submit that a cause of action or “interest in the proceedings” arising from misleading or deceptive conduct in respect of the second defendant did not survive the plaintiff’s death.
Counsel further submitted that s 2 of the LRMP Act and s 236 of the Australian Consumer Law (NSW) are inconsistent and irreconcilable, so that the principle of implied repeal applies in respect of the earlier LRMP Act provision: Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2 per Crennan, Kiefel and Bell JJ at [48].
Finally, in the event that the first and second defendants were successful in resisting the substitution application, they seek an order for costs against the applicant on her notice of motion.
The third defendant submitted that the substitution application should be refused because the claim against the third defendant had poor prosects of success; the Court could not be confident that the proceedings would be diligently litigated and there was a real issue as to whether the plaintiff’s estate or the applicant could satisfy an order for costs. Further, the position of the other beneficiaries of the plaintiff’s estate to the request to substitute Ms French as the plaintiff was unknown. In the absence of evidence as to their position and there being no grant of probate, letters of administration or a grant of administration ad litem, and with no evidence of there being assets to meet a costs order, this is not one of those rare cases in which there is no proper basis for the Court to exercise its discretion pursuant to r 7.10 of the UCPR. The applicant should therefore not be substituted as the plaintiff.
The third defendant canvassed in some detail the plaintiff’s pleadings against the third defendant in the ASOC proceedings, contrasting the oral representations that were pleaded by the plaintiff to have been made by the third defendant in July and August 2021 with correspondence and contemporaneous file notes made by the third defendant that directly contradicted the plaintiff’s assertions. Counsel noted that evidence of oral agreements would need to be approached with caution: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 per Hammerschlag J at [94].
A further consideration was the failure of the plaintiff to comply with court orders and directions. Counsel outlined aspects of the procedural history of the ASOC as relayed in Mr Haslam’s affidavit and annexed documents:
“The Third Defendant’s solicitors wrote to the Plaintiff on 15 June 2022 requesting particulars of the statement of claim. The Plaintiff did not respond. The matter was listed for directions on 29 June 2022 and the Court made an order for the provision of particulars in response to the letter. The Third Defendant’s solicitors followed up for the response on 14 July 2022 (the day after it was due pursuant to the Court’s orders of 29 June 202229). Still no particulars had been provided.
Then, on 15 July 2022, the Plaintiff sought a month to amend his pleading. Still the claim was not properly considered or formulated, though, and on 11 October 2022 the Plaintiff filed a motion seeking leave to amend his statement of claim. On 19 October 2022, the amendment motion was set down for hearing on 23 March 2023. The Plaintiff then breached the Court’s orders to prepare that motion for hearing by failing to file and serve written submissions by 9 November 2022. That was done on 31 January 2023, but not until there had been repeated prompting by the Third Defendant’s solicitors.
Even after all that, a new iteration of the pleading was sent on 13 March 2023 after the Third Defendant had prepared for the hearing of the Plaintiff’s amendment application (by then, the Third Defendant had filed and served evidence and submissions on 28 February 2023, going to the July 2022 ASOC). That was the third iteration of the pleading. On 23 March 2023, the Plaintiff’s amendment application was dismissed, with an order that he pay the defendants’ costs.
Another version was sent on 29 April 2023. That was the fourth attempt.
A further proposed amended statement of claim was circulated on 6 June 2023.”
Counsel for the third defendant submitted that there was no basis to assume that the case for the plaintiff would be run any more diligently if the substitution application was successful.
On the question of security for costs, the third defendant noted r 42.21 of the UCPR, submitting that relevant parts were r 42.21(1)(e) and (1A)(a), (b), (c), (e), (g) and (j).
The applicant said that the documentation relied on by the third defendant that contradicted the plaintiff’s pleadings as to the oral agreements was “completely self-serving”. He submitted that there was documentary evidence of the February 2021 agreement, but that it had been stolen.
In response to the allegation that the plaintiff’s case had been dilatory, Mr Weller said he had difficulty obtaining instructions from Mr Hermitage in the period leading up to his death due to his terminal illness.
I was satisfied that the pleaded claims for damages arising from alleged breaches of the Australian Consumer Law by the three defendants were not “causes of action” or “an interest in the proceedings” that survive the plaintiff’s death, for the purposes of s 2 of the LRMP Act and rr 6.30 and 7.10 of the UCPR. I so found for the reasons submitted by counsel for the first and second defendants and summarised at [22]–[32] above, namely, that the terms of s 236 of the Australian Consumer Law do not permit a person other than the plaintiff to recover loss or damage arising from a breach of a provision in Ch 2, which is the relevant Chapter for contraventions of ss 18, 20 and 21, which are bases of liability relied upon by the plaintiff in the ASOC.
The Australian Consumer Law (Cth) is the appropriate law concerning the claim against the first defendant, and the Australian Consumer Law (NSW) is the appropriate law concerning the claim against the second and third defendants. I accept the submission that the principle of implied repeal operated from the commencement of s 236 of the Australian Consumer Law (NSW) in respect of s 2 of the LRMP Act.
As conceded by counsel for the first and second defendants, there may be a remaining liability in contract. Counsel for the third defendant did not specifically allude to whether, as she understood it, the only basis for liability that was alleged by the plaintiff against her client was pursuant to the Australian Consumer Law, and the applicant, through Mr Weller, was silent on the liability issue generally.
To the extent that there may be a residual liability inferentially pleaded in the ASOC against the defendants that survives the plaintiff’s death in contract or otherwise, I then turned to the question of whether the applicant should be substituted for the plaintiff.
It is perplexing that the applicant’s case did not include evidence, as opposed to submissions, as to the content of the will, the wishes of all the beneficiaries and the applicant’s financial capacity to satisfy a costs order. One would expect that the executor of the plaintiff’s will would have given evidence as to the plaintiff’s assets and the appropriateness or otherwise of the substitution application and that the executor would not also be the instructed legal representative of the applicant, which gives the executor a personal financial interest in whether the proceedings continue.
There is no evidence as to what legal advice, if any, the applicant has received as to the circumstances in which she may personally have been liable for costs, and, if so, what the quantum of those costs could have been.
Mr Weller’s explanation for the poor standard of conduct of the plaintiff’s case may have some relevance to dilatory responses in 2025, but it is unpersuasive in respect of how the plaintiff’s case was conducted in 2022 and 2023.
In view of all the factors I have identified, it was appropriate to dismiss the proceedings against all three defendants. On 3 October 2025, I made the following orders:
The notice of motion filed on 8 August 2025 by Dianne Verlie French is dismissed;
Dianne Verlie French is to pay the costs of the notice of motion, including the hearing of the motion;
The amended statement of claim filed on 22 June 2023 is dismissed;
The matter is listed before the Registrar on Friday 10 October 2025 for directions regarding the costs of the proceedings.
**********
The only difference is that instead of the words “must not” in s 18, in s 52 of the TPA, which is also titled “Misleading or deceptive conduct”, the counterpart words are “shall not”: “(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
Hermitage
Fargun Bewdy Pty Limited [2025] NSWSC 1200
(2013) 252 CLR 1
(1997) 72 FCR 203
Counsel who appears on the substitution application jointly for the first and second defendants accepted that the claim in the ASOC against the first defendant appeared to be for breach of contract as well as a claim under the Australian Consumer Law pursuant to s 18 (misleading or deceptive conduct) and ss 20 and 21 (unconscionable conduct), and submitted that the claim against the second defendant was exclusively pursuant to those provisions. Counsel appearing for the third defendant noted that the liability of the third defendant was pleaded as being pursuant to ss 18, 20 and 21 of the Australian Consumer Law. Herbert Weller, solicitor, who appeared for the applicant on the substitution application and had represented the plaintiff in the ASOC proceedings until the time of his death, did not contest those assessments of the ASOC as to the pleaded bases of liability.
I also took into account that the plaintiff’s case against the first and third defendants, assuming there was a residual basis of liability, was dependent upon the Court making findings of fact accepting that one or both of the defendants entered into certain agreements with the plaintiff, either orally or in a written form, that is not available to the Court (since the plaintiff pleaded that his copy of the February 2021 agreement was stolen), which are contrary to documentary evidence concerning the same events. Based on the limited material before me and the solicitors’ affidavits as to costs, there is a very real prospect that if any surviving case against the first and third defendants proceeded to hearing there might well have been a significant costs order against the plaintiff and no apparent capacity for it to be complied with.
As noted above, the terms of rr 6.30, 6.31 and 7.10 of the UCPR are discretionary: the Court may make the orders permitted by rr 6.30(2), 6.31(2) and 7.10(2)(b). The exercise of this discretion involved a weighing of the competing interests, with the onus, in my view, resting on the applicant, since she was the party that moved the Court to make the substitution. On the one hand was the interests of the plaintiff’s estate in pursuing the surviving claim and on the other, the continuing exposure of the first and third defendants to litigation and the very real possibility of them facing unrecoverable further significant costs if they were successful.
I found that the evidentiary unknowns that I have identified in the applicant’s substitution case weighed heavily against her being substituted as the plaintiff. That being so, I refused the notice of motion filed by the applicant.
I determined to dismiss the proceedings against the second defendant because there was no surviving cause of action or interest in the proceedings against him. I dismissed the proceedings against the first and third defendants pursuant to r 6.31 in view of the consequent failure of the substitution application that left the proceedings without a substituted plaintiff and there being no alternative substitution proposed. In making that determination, I also took into account the uncertainty of any surviving cause of action, the plaintiff’s poor prospects of success, the unprofessional manner in which the litigation has been conducted by the plaintiff with no prospect of it being conducted any more diligently if it continues, and the real prospect of the defendants being unable to recover any order for costs if the matter proceeded to hearing and the plaintiff’s claim was dismissed.