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Representation: Counsel:
No appearance for Plaintiff
J Tsang (First Defendant)
J Abednego (Second Defendant)
Solicitors:
Robert Muts (Plaintiff, self-represented)
Linkpoint Lawyers (First Defendant)
Plus Ultra Lawyers (Second Defendant)
NSW Crown Solicitor’s Office (Third Defendant)

File Number(s): 2026/00167117

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. HIS HONOUR: Before the Court today for final hearing is a Summons filed 23 April 2026 seeking judicial review of certain decisions of the NSW Civil and Administrative Tribunal (the NCAT). Those decisions concern a head tenancy between the first defendant, Mr Hen Ly, and the second defendant, Ms Thi Ngoc Trang Le. There was a subtenancy between Ms Le and the plaintiff.

2. I had before me yesterday, 15 September 2026, related proceedings dealing with an application by the plaintiff by way of Summons seeking judicial review of a separate decision of the NCAT, and I yesterday dismissed that Summons under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I note that the plaintiff did not appear yesterday, and he has not appeared today.

3. The decisions subject of the Summons returnable today were made on 1 April 2026, 15 April 2026, and 16 April 2026. On 1 April 2026, NCAT General Member McCue terminated the residential tenancy agreement between the first defendant and the second defendant. Possession orders were made which were suspended until 14 April 2026. On 15 April 2026, NCAT General Member Ruschen dismissed an application by the plaintiff seeking that the decision of 1 April 2026 be set aside. On 16 April 2026, NCAT General Member McCue ordered, amongst other things, that the subtenancy between the plaintiff and the second defendant was terminated when orders were made on 1 April 2026.

4. On 23 April 2026, the plaintiff filed the Summons commencing these proceedings seeking judicial review of those NCAT decisions. On 24 April 2026, the plaintiff approached Justice Lonergan sitting as the Duty Judge seeking a stay of the execution of the warrant for possession. Her Honour refused this application: see Muts v Ly [2026] NSWSC 460. Amongst other things, her Honour in her reasons observed that the Summons was prolix and difficult to follow, and expressed a concern that it was utterly futile. Her Honour found that on the material then before the Court, it could not be established that the Summons had any prospects of success. There is no additional material before me today than was before her Honour on 24 April 2026 to be relied upon by the plaintiff. The Summons is in the same form. With the greatest of respect, I adopt all of the conclusions and findings made by her Honour that I have just referred to.

5. The proceedings were then managed by the Registrar in Common Law for directions. On 12 May 2026, the Registrar set a timetable for the filing and service of evidence and submissions and listed the proceedings for hearing today. She also listed the matter for further directions on 12 August 2026 to confirm the hearing date. The evidence establishes that since 12 May 2026, the plaintiff has not complied with any of the directions made by the Registrar. On 12 August 2026, there was a further directions hearing at which the plaintiff did not appear. The Registrar made orders in effect that the hearing date of today was confirmed, noting that no affidavit had been filed by the plaintiff and that the registry was to notify the plaintiff that the proceedings may be dismissed for want of due despatch under UCPR r 12.7.

6. No court book has been prepared by the plaintiff, and no other material has been provided by him. The solicitor for the first defendant, Jun Pan, in his affidavit affirmed 15 September 2026, outlined that he had corresponded with the plaintiff, including on 11 September 2026 when a draft copy of the court book was sent, but has had no response. On the evidence, the plaintiff has not engaged at all since last attending the directions hearing on 12 May 2026.

7. The first defendant applies for an order that the proceedings be dismissed pursuant to UCPR r 12.7. That rule provides:

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.

8. The application is joined by the second defendant who relies upon the submissions of the first defendant. The third defendant has filed a submitting appearance.

9. There is no formal Notice of Motion seeking an order for dismissal. Counsel for the first defendant, Mr Tsang, points out that s 86(3) of the Civil Procedure Act 2005 (NSW) provides that the Court may make any order it has power to make either on its own motion or application of the party. He refers to several authorities in which the Court has relied on that section absent a formal motion to make orders, including an order dismissing proceedings under r 12.7: see Lazarus v Director of the Independent Commission Against Corruption (No 2) [2015] NSWSC 1390; Baiada Poultry Pty Ltd v Jones [2018] NSWSC 915; and Boscolo v Consumer, Trader and Tenancy Tribunal [2014] NSWSC 1543 referred to in the written submissions of Mr Tsang.

10. I accept that the Court can rely upon this section subject to the dictates of procedural fairness. I am satisfied that there is no concern about procedural fairness to the plaintiff in these circumstances. The plaintiff has been well aware of the directions of the Court and attended all of the directions hearings except the last, and has not complied with any of the directions despite repeated extensions for him to do so. I infer that the plaintiff has chosen not to appear both yesterday in the associated proceedings and today for the hearing of this Summons. I accept in those circumstances that the Court is able to rely upon UCPR r 12.7 to dismiss the proceedings for want of due despatch.

11. The principles governing whether the Court should make such an order were discussed by McHugh JA in Violi v GEMI 169 Pty Ltd [2026] NSWCA 94:

[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.

12. The position is that the Court must strike a balance between the plaintiff and the defendants and decide whether, on balance, justice demands that the proceeding be dismissed under the rule.

13. It is clear from the authorities referred to by McHugh JA that the particular circumstances disclosed in each case are critical for the exercise of the discretion under UCPR r 12.7. One of the relevant matters is whether there is prejudice to the defendants. I accept that there is prejudice in this case with the defendants having had to engage solicitors to prepare a court book, brief counsel, and attend the hearing both yesterday and today. This is in circumstances where the Summons seeks review of orders terminating a tenancy back in in April 2026 where the plaintiff no longer is in possession of the premises and the Summons that he seeks to rely upon is, as I have mentioned, prolix, liable to be struck out, and does not have any realistic prospects of success.

14. In those circumstances, it seems to me that this is an appropriate case in which the Court should exercise its discretion to dismiss the summons under UCPR r 12.7. I infer that the plaintiff does not intend to prosecute the proceedings any further with due despatch. I infer that from the failure of him to comply with the directions that I have mentioned and his non-appearance both today and yesterday, knowing that the proceedings he had brought in this Court were to be determined with two days having been set aside.

15. Whilst the period of delay may not be thought to be significant, it seems to me that the whole of the circumstances that I have referred to enable a conclusion to be made, which I do make, that it is appropriate for an order to be made under UCPR r 12.7 that the proceedings be struck out.

16. Mr Tsang put forward an alternative basis of having the proceedings dismissed under UCPR r 13.6. That rule provides:

13.6 Non-appearance by plaintiff

(1) If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing.

(2) If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings.

(3) This rule does not restrict any other power of the court to dismiss proceedings.

17. Whilst no notice has been given that that rule may be relied upon, as I have mentioned, the orders of the Court made on 12 August 2026 did indicate that the proceedings may be dismissed for want of due despatch under UCPR r 12.7. Those orders were sent to the plaintiff by the registry. He was thus aware that if he did not comply with the directions, and if he did not appear today to prosecute his claim, the proceedings may be dismissed.

18. The notice given by those orders was more than five days before the hearing today. The plaintiff did not appear on 12 August 2026, and nor has he appeared today. Whilst I do not need to formally decide it, it seems to me, in addition to the power to dismiss the proceedings under rule 12.7, that I could dismiss the proceedings under r 13.6. As I have said, however, I do not consider it necessary to formally determine this as I have reached the conclusion that the appropriate power exists under UCPR r 12.7, and this is a case in which such an order should be made.

ORDERS

19. In all of the circumstances, therefore, the order of the Court is that:

20. The proceedings are dismissed pursuant to UCPR r 12.7.

21. The plaintiff pay the defendants' costs of the proceedings.

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