Howse v Caam Group Pty Limited

Parties: Michael Howse (First Plaintiff)
Rosena Howse (Second Plaintiff)
Caam Group Pty Limited (Defendant)

Representation: Counsel:
J Horowitz (First and Second Plaintiffs)
Solicitors:
Alex Norrie & Associates (First and Second Plaintiffs)

File Number(s): 2023/00353243

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court is a show cause hearing in relation to the matter of Howse v CAAM Group Pty Ltd.

2. Mr Horowitz, who appears for the plaintiffs, orally applied for an order that the Amended Defence be struck out for want of due dispatch.

3. The matter was transferred to this Court from NCAT in October 2023. On 11 December 2023, a Statement of Claim was filed indicating that it was a building dispute in relation to a residential property at Forestville in Sydney. The defendant is a building company.

4. In support of the application, Mr Horowitz read the affidavit of Alexander Norrie dated 19 November 2025. That affidavit sets out in useful detail the background to the matter, including the former legal representation of the defendant, notice of the proceedings to date to the defendant and defaults by the defendant. I take the detail in that affidavit Into account in this application. At present, the defendant company has no legal representation.

5. On 9 October 2025, a Notice of Motion came on for hearing before Waugh SC DCJ, and at that hearing, a legal representative for the defendant appeared as the time under a Notice of Intention of Ceasing to Act filed by them had not yet expired. The legal representative indicated that he was not instructed in the matter by the defendant and that he had done all he could to receive instructions from the client and had not received any. He also stated that he had notified the defendant that the matter was listed in court on that day, 9 October 2025, and that he had kept the director of the defendant up to date with the correspondence.

6. Annexed to Mr Norrie's affidavit is an ASIC historical company search that shows the registered office of the defendant to be [XX] Castlereagh Highway, Mendooran, New South Wales, 2842. It also shows that Mr Muthan of [XX] Close, Hinchinbrook, New South Wales, 2168, is the sole director of the defendant.

7. At present, therefore the defendant has no legal representation. I am satisfied from paragraphs 8 and following of Mr Norrie's affidavit that extensive efforts have been made by the plaintiffs to bring this hearing to the attention of the proper officers of the defendant. I also note that on 3 November 2025 and on 10 November 2025 (the latter date was when I made the show cause order), there was no appearance by or on behalf of the defendant. The efforts to bring the current listing to the attention of the defendant are set out in the affidavit of Mr Norrie. In addition, my associate, as referred to in the affidavit, has forwarded notice of the hearing to the addresses on the Notice of Ceasing to Act.

8. The defaults and delinquencies of the defendant are referred to in the affidavit including:

(a) Default in the service of lay affidavits; (b) Default in the provision of particulars; (c) Default in the arrangement of expert witness conclaves; (d) The failure, pursuant to the order made by me on 10 November 2025, to file a show cause affidavit.

9. As I indicated, I take all of those matters into account in relation to the oral application.

10. Part 12.7 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides as follows:

**“**12.7 Dismissal of proceedings etc for want of due despatch

(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.”

11. In Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75, Kirk JA in paragraphs 55 ‑ 56 sets out the principles to be applied in an application to dismiss proceedings under Part 12.7 of the Uniform Civil Procedure Rules 2005. His Honour refers to the discretion given to the Court and to the discussion by Walsh JA in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534. Those remarks of Walsh JA have been referred to in numerous later cases, particularly the classic judgment in Stollznow v Calvert [1980] 2 NSWLR 749 and the recent consideration by the Court of Appeal in Ghosh v Nine MSN Pty Ltd (2015) 90 NSWLR 595.

12. As is clear, everything must depend upon the circumstances disclosed in each particular case. The Court takes into an account whether an explanation or excuse has been offered for the delay, and whether it is credible and satisfactory. Evidence of prejudice is relevant. The claimant's prospects of success are also relevant, as well as the matters set out in ss 56 ‑ 60 of the Civil Procedure Act 2005 (NSW). The discretion the Court exercises should not be undertaken by reference to fixed formulae which limit the discretion of doing what is proper in all the circumstances.

13. In Ergashova v Aslan [2025] NSWCA 207, the Court of Appeal confirmed the analysis that I have previously referred to in Ghosh and Witten v Lombard Australia Ltd. The Court, in a joint judgment, stated that the discretion to dismiss proceedings under Part 12.7 of the UCPR is broad and should not be confined by rigid formulae. Macfarlan JA in Ghosh was referred to. His Honour had observed that the relevant delay in this context was not confined to that which is caused by a lack of activity, but extends to delay arising out of a want of constructive activity.

14. I take into account those principles from the Court of Appeal in exercising the discretion which I need to exercise to determine the application.

15. The facts established, both from the court file and from Mr Norrie's affidavit, satisfy me that:

(a) The defendant, through its officer, has been given full notice of this hearing and the previous two hearings; (b) The defendant does not have legal representation; (c) The defendant failed to give instructions to the previous solicitor whilst being aware of the listing before Waugh SC DCJ on 9 October 2025; (d) The defendant has failed to file an affidavit in answer to my show cause order; (e) The defendant appears not to desire to actively promote the proceedings.

16. I take into account the age of the proceedings and the factors set out in ss 56 ‑ 60 of the Civil Procedure Act 2005. I take into account the nature of the matter, it being a residential building matter, and the extensive interlocutory history in the matter.

17. For the above reasons, I make the following orders:

18. Note that the defendant has not filed an affidavit by 5pm on 17 November 2025 showing cause why its Amended Defence filed on 13 November 2024 should not be struck out for want of due despatch in accordance with orders made on 10 November 2025.

19. Pursuant to Part 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), the Amended Defence of the defendant filed on 13 November 2024 is struck out.

20. The defendant is to pay the plaintiffs’ costs of and incidental to 20 November 2025 as agreed or assessed.

21. The matter is listed for directions before the List Judge on 12 December 2025 at 9:30am.

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