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[2026] NSWSC 1134
General information, not legal advice.
Supreme Court of NSW
2026-09-15
Coleman 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: Muts v Le & Anor [2026] NSWSC 1134
Hearing dates: 15 September 2026
Date of orders: 15 September 2026
Decision date: 15 September 2026
Jurisdiction: Common Law
Before: Coleman J
Decision: (1) The plaintiff’s Notice of Motion filed 24 April 2026 is dismissed.
(2) The proceedings are dismissed pursuant to rule 12.7 of the UCPR.
(3) The plaintiff is to pay the defendant's costs of the proceedings.
Catchwords: CIVIL PROCEDURE — plaintiff commenced proceedings seeking judicial review of NCAT Appeal Panel decision — where plaintiff is self-represented — where defendant filed motion seeking dismissal of the summons under UCPR r 12.7 — where plaintiff failed to comply with relevant directions and appear at hearing — having regard to circumstances of case when dismissing proceedings under r 12.7 — prejudice to defendant — proceedings dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Muts v Le [2026] NSWSC 92
Muts v Ly and Anor [2026] NSWSC 460
Violi v GEMI 169 Pty Limited [2026] NSWCA 94
YQM v Le [2025] NSWCATAP 205
Category: Principal judgment
Parties: Robert Muts (Plaintiff)
Selena Le (also known as Thi Ngoc Trang) (First Defendant)
Department of Communities and Justice trading as NSW Civil and Administrative Tribunal (Second Defendant)
Representation: Counsel:
No appearance for Plaintiff
J Abednego (First Defendant)
J Tsang (Defendant in relating proceedings of 2026/00167117)
Submitting Appearance for Second Defendant
Solicitors:
Robert Muts (Plaintiff, self-represented)
Plus Ultra Lawyers (First Defendant)
NSW Crown Solicitor’s Office (Second Defendant)
File Number(s): 2025/00458442
Publication restriction: Nil
HIS HONOUR: These proceedings arise out of proceedings commenced in the New South Wales Civil and Administrative Tribunal (the NCAT) concerning the sub-lease of a property by the plaintiff from the first defendant. The first defendant had leased that property from a Mr Ly. There were proceedings for the termination of the head lease between the first defendant and Mr Ly in the NCAT. The plaintiff sought to be heard in those proceedings, although he was not a party to them but was an interested party in the result.
On 31 March 2025, the NCAT adjourned the proceedings and made an order that the parties may be legally represented. The plaintiff sought reasons for the representation order and, on 7 April 2025, the NCAT issued a further order granting both parties leave to be represented and gave reasons.
The plaintiff sought leave to appeal that decision to the Appeal Panel of NCAT. On 26 August 2025, the Appeal Panel refused the plaintiff leave to appeal and dismissed the appeal: see YQM v Le [2025] NSWCATAP 205.
By Summons filed 26 November 2025, the plaintiff commenced these proceedings seeking judicial review of the Appeal Panel decision and the representation orders.
The plaintiff is self-represented in these proceedings. The summons in the form filed and as currently before the Court is prolix, confusing, and contains sections which have nothing but characters rather than words, making it difficult to understand. It requires amendment.
The plaintiff approached this Court on 17 February 2026 when Campbell J was sitting as the duty judge. The plaintiff sought a stay of the underlying NCAT proceedings: see Muts v Le [2026] NSWSC 92. His Honour refused the stay, concluding, inter alia, that the Summons seeking judicial review was not fairly arguable.
On 2 March 2026, there was a directions hearing in this Court before the Registrar in Common Law. The plaintiff appeared, as did representatives for the defendant. The plaintiff was directed to serve a Draft Amended Summons by 20 March 2026. He failed to comply with this direction.
On 1 April 2026, in the NCAT proceedings, the NCAT terminated the head tenancy between Ms Le and Mr Ly, and possession orders were made with respect to the property.
On 10 April 2026, there was a further directions hearing in this matter before the Registrar in Common Law. The plaintiff was granted an extension to file and serve a motion to amend the Summons and a supporting affidavit. The plaintiff appeared at that directions hearing. He did not comply with the directions.
On the same day, the defendant, Ms Le, filed a Notice of Motion seeking a dismissal of the Summons and orders including that the matter be dismissed for want of proper prosecution and also as an abuse of process.
On 17 April 2026, the matter was again before the Registrar. The plaintiff appeared on that day. The Registrar extended the time for the plaintiff to file and serve a motion to amend the Summons, and made the matter returnable for further directions on 22 April 2026. The plaintiff appeared at that time but again did not comply with the orders.
On 22 April 2026, the matter returned again for directions before the Registrar. The plaintiff appeared. He proposed that the motion for an Amended Summons be returnable for directions on 12 May 2026.
On 23 April 2026, the plaintiff commenced separate but related proceedings in this Court seeking a judicial review of the NCAT decision of 1 April 2026 that I have referred to which terminated the head tenancy.
On 24 April 2026, the plaintiff approached Lonergan J, who was sitting as the duty judge, seeking a stay of the warrant for possession of the property that had been issued by the NCAT and the orders relating to possession. Her Honour refused the stay: see Muts v Ly and Anor [2026] NSWSC 460. Her Honour also ordered that the related proceedings and these proceedings travel together.
On the same day, 24 April 2026, the plaintiff filed a motion in these proceedings seeking leave to amend the Summons and retrospective leave to extend the deadline for him to do so.
On 12 May 2026, there was a directions hearing in these proceedings and the related proceedings. The plaintiff appeared at that time. On that day, directions were made for the preparation of the hearing of the notice of motion in these proceedings and the Summons in the related proceedings. The motion was listed for hearing today, 15 September 2026. The directions relevant to this matter were that:
Affidavits and folder in compliance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 50.8 to be filed and served by 30 June 2026.
The defendant to file and serve any affidavit by 31 July 2026.
The plaintiff to file and serve any submissions in reply (maximum of 5 pages) by 19 August 2026.
The matter be listed today with an estimate of one day.
The matter be listed for directions on 12 August 2026 (to confirm hearing arrangements).
The plaintiff did not comply with any of the directions insofar as they concerned him; that is, he did not file any affidavits nor any submissions as was required.
On 12 August 2026, the matter came back for directions before the Registrar. The plaintiff did not appear. On that occasion, the Registrar noted that no affidavit had been filed by the plaintiff. The orders made by the Registrar also stated that the order served as a notification that the matter may be dismissed for want of due dispatch under UCPR r 12.7. The registry was to send a copy of the orders to the parties, and the hearing date of 15 September 2026 was preserved. The Registrar granted liberty to restore.
When the matter was called before me today for hearing, the plaintiff had not appeared. The matter was called three times outside of Court and there was no appearance by the plaintiff. I am satisfied that the plaintiff has notice of the hearing and that it is appropriate to proceed in his absence.
The defendant moves on the Notice of Motion filed 10 April 2026, in particular, seeking that the proceedings be dismissed pursuant to UCPR r 12.7 for want of due dispatch. In support of that application, the defendant reads an affidavit of John Nassif sworn 10 April 2026. I have also had the benefit of submissions from counsel for the defendant.
Rule 12.7 of the 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.
[60] The principles applicable to r 12.7 were recently summarised by Kirk JA in Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75. His Honour said:
“55 The discretion to dismiss a proceeding under r 12.7 of the UCPR is available to this Court pursuant to r 51.1(3) of the UCPR. Justice Walsh discussed the exercise of such a discretion in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534:
a balance must be struck between the plaintiff and the defendant and, in the end, ‘the court must decide whether or not on balance justice demands that the action should be dismissed’. …
Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.
56 Those remarks have been referred to with approval by later decisions of this Court: see eg Stollznow v Calvert [1980] 2 NSWLR 749 at 751; Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [40]. Thus the discretion should not be undertaken by reference to fixed formulae which limit the discretion to do what is just between the parties: note Stollznow at 753; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [50]-[51]. A factor potentially relevant is the claimant’s prospects of success: see eg Hoser v Hartcher [1999] NSWSC 527 at [29]. The matters identified in ss 56-60 of the Civil Procedure Act are relevant: eg Ghosh at [42]-[43].”
[61] As to the significance of delay, an important consideration is whether there has been any constructive activity: Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [41].
[62] What engages the power is an existing state of affairs: “If a plaintiff does not prosecute the proceedings with due despatch”. The existence of that state of affairs will generally be established by reference to steps the plaintiff should have taken to date, but has not taken, or has taken only belatedly. To that extent, the power is backwards-looking. On the other hand, in exercising the discretion whether to dismiss the proceedings (or to make some “other order”), the court must have regard to, among other things, the overriding purpose in s 56 of the Civil Procedure Act (facilitating the just, quick and cheap resolution of the real issues) and to the dictates of justice (s 58). The balance referred to in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534 requires the court to consider not only past prejudice, but the prejudice to the plaintiff if the proceeding is dismissed, and the prejudice to the defendant if it is not. It follows that, whatever may be the plaintiff’s explanation for the existing state of affairs, exercising the discretion with regard to the justice of the case will often involve an assessment, on the material before the court, about whether or not that state of affairs is set to continue. To that extent, the power is also forwards-looking.
Relevantly, I must strike a balance between the plaintiff and the defendant and decide whether or not, on balance, justice demands that the proceeding be dismissed under the rule.
It is clear from the authorities referred to by McHugh JA that everything must depend upon the circumstances disclosed in each particular case. Relevant is whether there is any explanation or excuse offered, and there is none in this case. It is also proper to consider whether there is any prejudice to the applicant in this case, Ms Le. I accept that there is the prejudice in her having to instruct solicitors and counsel to appear at Court for a matter in which the tenancy has been determined back in April of this year. The plaintiff vacated the property soon after the stay of execution of the warrant for possession was refused by Lonergan J on 24 April 2026. I am informed from the bar table that the landlord, Mr Ly, has subsequently re-let the property.
I accept that the spectre of the proceedings hanging over the head of Ms Le, in circumstances where she is no longer in possession of the property, and the Summons seeks review of a decision of the NCAT to allow representation at proceedings which themselves have been determined, does cause her prejudice. I also accept a relevant matter in considering the balancing exercise that I must undertake is that the fact that the Summons seek a review of the Appeal Panel determination with respect to representation is otiose. Also as Campbell J found, in my opinion correctly, the relief sought in the Summons is not fairly arguable.
The plaintiff has not, in my opinion, prosecuted the proceedings with due dispatch. He has not complied with the directions that I have referred to, and there is no explanation for that delay. As I have said, the Summons in its current form would be liable to be struck out in any event.
The plaintiff does not appear today. I am satisfied, as I have said, he is aware of the matter and there is no explanation for his non-appearance.
Having regard to the circumstances of this case, whilst it might be thought that the length of delay is not significant, the whole of the circumstances lead me to conclude and infer that the plaintiff does not intend to prosecute these proceedings with due dispatch. I make that inference by reference to the steps that the plaintiff should have taken to date, but has not taken.
I also take into account the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the matter and the dictates of justice. In my opinion, the balancing exercise required to be exercised today requires that the proceedings be dismissed.
Also before the Court today was a motion by the plaintiff seeking leave to amend the Summons. As the plaintiff has not appeared, and as I think there is no utility in the motion in any event, the order of the Court will also be that the plaintiff's motion filed 24 April 2026 is dismissed, with the plaintiff to pay the costs of the defendant.
The orders of the Court will be that:
The plaintiff’s Notice of Motion filed 24 April 2026 is dismissed.
The proceedings are dismissed pursuant to r 12.7 of the UCPR.
The plaintiff is to pay the defendant's costs of the proceedings.
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Muts
Le & Anor
[2026] NSWSC 460
(2015) 90 NSWLR 595