Morton v Adelstein Group Pty Ltd

Publication restriction: Nil

revised ex tempore judgment

1. On 5 May 2025, Stephen Morton (“the plaintiff”), filed a Summons to appeal from a Local Court decision of Magistrate McIntyre of 28 April 2025 (“the Local Court decision”). The plaintiff did not seek leave to appeal.

2. It is important to note at the outset that the date of 28 April 2025 listed in the Summons is incorrect. The orders of Magistrate McIntyre, which the plaintiff appeals, were made on 15 April 2025.

3. The Summons was handwritten and provided scant details. It identified that the plaintiff was appealing the whole of the decision below and sought an order that the order of the Local Court be set aside. The appeal grounds were simply stated as follows:

“ERROR AT LAW $5500.00 NOT PAYABLE ABUSE OF PROCESS.”

4. It appears that there was some issue with respect to service of the originating process on the defendant. However, the defendant was provided access to the file by the Registrar and submitted a notice of appearance.

5. On 28 May 2025, the Registrar granted the plaintiff leave to file and serve any amended Summons (including seeking leave to appeal) by 9 July 2025. The plaintiff did not file an amended Summons in accordance with those directions.

6. On 16 July 2025, the Registrar extended the date for the plaintiff to comply with the filing of an amended Summons to 5 August 2025. The plaintiff did not file an amended Summons by that extension date.

7. It was the defendant’s evidence that on each occasion, the plaintiff referred to a need to obtain legal advice as the reason for his non-compliance with the Court’s directions.

8. On 12 August 2025, Adelstein Group Pty Ltd (“the defendant”) brought an application by Notice of Motion (“the Motion”) for the following orders:

9. Pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the proceedings be dismissed for want of due despatch.

10. Further or in the alternative, pursuant to r 13.4 of the UCPR, the proceedings be dismissed on the basis that the proceedings failed to disclose a reasonable cause of action and/or are an abuse of process.

11. The plaintiff pay the defendant’s costs of the Motion and of the proceedings on an indemnity basis, or alternatively, on an ordinary basis.

12. Such further or other order that the Court sees fit.

13. That Motion was supported by an affidavit of Geoffrey John Adelstein of 7 August 2025.

14. The affidavit of Mr Adelstein sets out further procedural history with respect to the substantive matter in the Local Court. This included some factual history with respect to Mr and Mrs Morton requesting another adjournment on 20 May 2025, on the basis of a medical certificate. The Magistrate ultimately refused to grant the adjournment and made orders in favour of the defendant for the amount of their claim and interest.

15. The Motion was listed in the Court’s duty list this morning. There was no appearance for the plaintiff after having been called outside of the Court in the regular manner.

16. I note that with respect to the Motion, the plaintiff was directed to file and serve any evidence in response to the defendant’s motion by 22 September 2025, as well as any submissions by 25 September 2025. The plaintiff did not comply with either of those directions.

17. Having regard to the evidence of Mr Adelstein in his affidavit and that non-appearance, it seems to me appropriate that I proceed to deal with the Motion ex parte.

18. The judgment that I now deliver concerns that Motion.

19. I further note that in oral submissions today, Mr Adelstein on behalf of his corporation, the defendant, identified that he did not press the relief sought in the Notice of Motion [2] and relied upon UCPR r 12.7 seeking orders for dismissal on the basis of a want of due despatch.

20. I also note that with respect to costs, Mr Adelstein accepted that it was ultimately a matter for the Court’s discretion as to what order may be made as to costs.

Local Court proceedings

17. The defendant commenced proceedings in the Local Court against the plaintiff and his wife, Mrs Morton, in respect of unpaid legal fees.

18. The proceedings came for hearing before Magistrate McIntyre on 15 April 2025. At that time, both parties were legally represented.

19. The plaintiff had been directed to file evidence in respect of the Local Court proceedings by 14 February 2025. The plaintiff was in default of those directions having filed and served the evidence on the defendant on 7 April 2025. The plaintiff’s legal representative was unable to provide the Local Court with a satisfactory reason for the failure to comply with the Local Court’s directions.

20. The defendant objected to the evidence on the basis that it had only been received seven days prior to the hearing, and as such, it was disadvantaged and had not had a reasonable opportunity to respond.

21. Magistrate McIntyre allowed the plaintiff to rely on the evidence but made further directions to have the matter ready for hearing, including the receipt of evidence in reply, and adjourned the hearing to 20 May 2025.

22. Magistrate McIntyre also ordered Mr and Mrs Morton to pay the defendant’s costs thrown away by reason of the adjournment, assessed on a lump sum basis as $5,500. This is the order which the plaintiff wishes to challenge by the Summons but I note that the Summons does not challenge any aspect of the Magistrate’s determination otherwise with respect to the proceedings.

23. It was the defendant’s evidence that they would prefer to take any enforcement steps with respect to the Local Court’s orders simultaneously, which they are unable to do while the Summons remains on foot.

Defendant’s submissions

24. In summary, the defendant submitted as follows:

25. The plaintiff has a persistent and consistent pattern of non-compliance with court orders. The plaintiff appears to treat the court regime as voluntary, and his breaches are repeated.

26. The matter is a textbook example of procrastination and non-progress, evidenced by the plaintiff’s failure to comply with the directions of Registrar Hedge on two occasions.

27. The Summons itself is misconceived and seeks to challenge the Local Court’s undoubted discretion to award costs, in circumstances where the plaintiff was granted an indulgence by being permitted to rely on late evidence.

28. The plaintiff received advice from the Registrar that leave was required to challenge the Magistrate’s ruling on costs and that the originating process must be amended if it is to proceed. Despite this, the plaintiff has failed to take those steps to bring the matter to regularity.

29. The plaintiff’s failure to adhere to court orders has delayed and protracted the proceedings, increasing the costs for the defendant in attending the directions hearings in an effort to have the matter regularised and prepared for hearing.

30. The plaintiff’s failures have and continue to frustrate the matter proceeding and are contrary to the quick, cheap and just disposal of the real issues in dispute. They stalled the matter from proceeding to determination.

31. In his written submissions, Mr Adelstein referred to a number of cases which reference the guiding principles of case management under the Civil Procedure Act 2005 (NSW): see Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30; Pi v State of New South Wales (No 6) [2017] NSWSC 874; Sutherland and Anor v GHR Accounting Group Pty Limited (No. 2) [2019] NSWSC 1636.

32. In my view, the submissions advanced by the defendant with respect to the Motion are of considerable force. In substance, I accept those submissions as guiding my determination in the present matter. I have also had regard to the obligations falling upon the parties under the Civil Procedure Act.

33. In the result, I consider that the prayer for relief in proposed order 1 of the Motion should be granted and I do so.

34. The question of costs then arises.

Costs

29. I have considered whether there was any appropriate basis, having regard to the circumstances as I have described it in my judgment, for the granting of costs on an indemnity basis.

30. I do not consider that there is a proper basis to do so.

31. However, there is more than ample basis for costs to be awarded on an ordinary basis and, in the result, I make an order that the plaintiff shall pay the defendant’s costs of the proceedings as agreed or in default as assessed.

Orders

32. The Court makes the following orders:

33. The proceedings are dismissed.

34. The plaintiff shall pay the defendant’s costs of the proceedings as agreed, or in default, as assessed.

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