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[2009] VSC 367
General information, not legal advice.
Supreme Court of Victoria
2009-09-08
Byrne J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - order for inspection of discovered documents - self-executing order - proceeding dismissed for non-compliance - whether plaintiffs ought to be relieved from consequence of non-compliance with inspection order - want of prosecution - whether plaintiffs guilty of inordinate delay - whether prejudice.
1 Before the court are two appeals from orders made by Daly AsJ:
(1) An appeal of the defendants by notice filed on 15 May 2008 against an order made on 9 May 2008. The order dismissed the defendants' application brought by summons filed on 26 October 2007 seeking to strike out the claim for want of prosecution.
(2) An appeal of the plaintiffs by notice dated 22 May 2009 against an order made on 18 May 2009. The order dismissed the plaintiffs' application brought by summons filed on 26 September 2008 seeking an order that the self-executing order of 18 July 2008 dismissing the plaintiffs' claim be set aside.
2 The claims of the plaintiffs in this case are a little complicated. The following is a summary of them as appears in their second further amended statement of claim dated 24 July 2002.
3 In 1992 and 1993 each of two companies, Thermeda Pty Ltd[1] and Duropa Nominees Pty Ltd, respectively, granted to the secondnamed defendant, National Australia Bank Ltd, a debenture charge over their assets.[2] At that time, and up to July 1995 Thermeda and Duropa owned certain plant and equipment used in the manufacture of aluminium and zinc diecast components.[3]
4 The diecast business in which the plant and equipment was used was operated by Thermeda from 1992 to June 1994,[4] by a company called Pinoak Pty Ltd from June 1994 to September 1995 and, thereafter, by Townsend & Parker Pty Ltd as trustee for the Townsend Unit Trust.[5] The premises from which the diecast business was conducted were situate at 320 Lower Dandenong Road, Braeside.
5 By sale agreement dated 5 June 1995 Thermeda and Duropa sold the plant and equipment to the secondnamed plaintiff, Mantonella Pty Ltd, for $1.05m.[6] This sale is said by the plaintiffs to have been made with the knowledge and consent of the bank.[7] The bank denies this allegation.[8] Settlement of the sale agreement was to occur on 10 July 1995 or so soon thereafter as the parties should agree.[9]
6 By an agreement made on or about 7 June 1995 between Thermeda, Duropa, Mantonella and the bank, the bank agreed to accept the sum of $1.05m in satisfaction of the debts owed to it and agreed not to enforce the debentures, subject to the completion of the sale agreement on 10 July 1995. This agreement is called in the statement of claim "the deferral of securities agreement".[10] The bank says that it agreed to accept the sum in full satisfaction of the debts of those companies but that this was subject to conditions. It denies that it agreed not to enforce the debentures.[11]
7 On 27 June 1995 Thermeda went into liquidation.[12]
8 In or about August 1995, Thermeda, Duropa, Mantonella and the bank entered into an agreement varying the sale agreement and the deferral of assets agreement. In essence, this agreement provided for payment by or on behalf of Mantonella to the bank of $150,000 which would be treated both as a repayment on account of the debts of Thermeda and Duropa to the bank, and also as a payment on account of the price payable by Mantonella under the sale agreement. Upon receipt of this sum, the bank would release the plant and equipment from the debentures or alternatively would not enforce them.[13] This variation agreement is denied by the bank.[14]
9 Three payments of $50,000 were made to the bank on 15 August 1995, 1 September 1995 and 4 September 1995 respectively.[15]
10 On 16 October 1995 the bank appointed the firstnamed defendant, Gregory Pollard Meredith, a partner in Ferrier Hodgson, to be receiver and manager of the assets of Thermeda and Duropa.[16] This is said by the plaintiffs to have been done in breach of the deferral of securities agreement as varied.[17]
11 By lease dated 20 October 1995, Townsend became lessee of the premises as from 1 September 1995.[18]
12 On 21 October 1995 Mr Meredith entered upon the premises and seized the plant and equipment.[19] This is said by the plaintiffs to be an act of the bank done in breach of the deferral of securities agreement as varied,[20] a conversion of the plant and equipment,[21] a trespass upon the premises[22] and a trespass to the chattels.[23] In each case substantial damages are claimed.
13 On 17 November 1995, Mr Meredith sold the plant and equipment back to a company associated with the plaintiffs for $600,000.[24]
14 An alternative claim by Mantonella against the bank is for damages for misleading and deceptive representations made "during the period from on or around 15 August 1995 to September 1995".[25] The representations, which are attributed to John Riddiford, were to the effect that the bank would agree with the parties to the sale agreement extending the settlement to an unspecified date, subject to its receiving $150,000 and that, subject to receiving that sum, it would not enforce the debentures and would release the chargors.[26]
15 The identity of the trustee of the Townsend Unit Trust changed from time to time. In or about January 1998 Townsend was placed in administration and on or about 28 May 1998 in liquidation.[27] On 16 March 1998 Townsend resigned as trustee and Pinoak was appointed in its place.[28] On 19 October 1998,[29] the day before this proceeding was commenced, Pinoak resigned as trustee and the firstnamed plaintiff Mizzi Pty Ltd was appointed in its place.[30]
16 The claims against the plaintiffs are for substantial damages. Mizzi seeks damages inasmuch as its diecast business was affected by the entry on the premises and the loss of the plant and equipment pending their repurchase. The amounts claimed are said to be between $21.6m to $36.6m.[31] In addition, exemplary and aggravated damages are sought.[32] In the prayer for relief these exemplary and aggravated damages are sought by Mantonella. This is probably an error.
17 Mantonella seeks damages for the $150,000 which it paid under the variation agreement together with a further sum, being the difference between representing the price paid for the repurchase of the plant and equipment from Mr Meredith and their true value.[33]
18 It will be seen from this brief summary that, apart from damages, there will be in this case serious issues as to whether the bank consented to the sale agreement and as to the existence and terms of the deferral of the securities agreement and of the variation agreement.
(a) The bank's knowledge of and consent to the sale agreement. It is alleged that the knowledge and consent of the bank is to be inferred from a conversation between Frank D'Agostino, Frank Packer and Tim McHenry on behalf of Thermeda and Will Charlton and Gordon Unwin on behalf of the bank and from a number of documents identified in the particulars to paragraph 23 of the statement of claim.
(b) The deferral of securities agreement. This agreement is said to be partly in writing, partly oral and partly to be implied. The documents are identified in the particulars to paragraph 25 of the statement of claim. The oral and implication components are expressed in the pleading as follows -
To the extent that it was oral, it was constituted by discussions between John Riddiford of the NAB and Mr Tim McHenry on behalf of Thermeda, Duropa and Mantonella. The relevant substance of the discussions was to the effect alleged. To the extent it was implied, it was implied from the need to give business efficacy to the agreement.
(c) The variation agreement. This agreement is said to be partly in writing, partly oral and partly to be implied. In the particulars to the statement of claim paragraph 27, the oral components are said to have occurred in conversations with Mr Riddiford on behalf of the bank.
19 Procedurally speaking, from the plaintiffs' point of view, this case has had a bad history - about as bad as one could imagine. I will not burden this judgment with the disastrous events which have beset the plaintiffs' claims over the 11 years that have elapsed since the writ was filed on 20 October 1998. I annex a chronology which I have adapted from that provided by counsel for the defendants. I mention only the following as an indication of the conclusion which I have expressed.
20 While there may have been some delay or duplication of work due to the change of solicitors by the defendant, the responsibility for the inordinate 11 year delay to date lies with the plaintiffs.
21 It is convenient to deal first with the appeal with respect to the dismissal of the proceeding by operation of the self-executing order made on 18 July 2008. On this day, Master Daly ordered that the plaintiffs provide inspection of their discovered documents by 29 July 2008 and that, if the plaintiff failed to comply, the proceeding stand dismissed.
22 It was not strenuously disputed before me that, although a number of documents were made available and were in fact inspected by the solicitors for the defendants on 24 and 28 July 2008, this was not all of the plaintiffs' discovered documents. Eight boxes of documents were not made available and certain documents from other boxes were missing upon those inspections, a fact which was brought to the attention of the solicitors for the plaintiffs the day before the deadline expired. No response or extension of time was made or sought on their behalf. By letter dated 6 August 2008 the solicitors for the defendants took the position that the proceeding had been dismissed.
23 The solicitors for the defendants on 28 August 2008 filed a summons seeking an order for the costs of the dismissed proceeding. By summons filed on 26 September 2008 returnable on 13 October 2008, the plaintiffs applied to set aside the judgment. The history of the plaintiffs' summons is instructive for my present purposes.
24 I was referred to a recent decision of the Court of Appeal in Jorgensen v Slater & Gordon Pty Ltd,[37] a case which involved Alan Bradley Jorgensen, the director of the plaintiffs in this case. In their consideration of the principles which I must apply, the Court observed that the Court has a wide discretion to relieve defaulters of the consequences of their non-compliance.[38] They set out four matters which, at least, I should have regard to:
(a) the circumstances in which the self-executing order was made;
(b) the reasons for non-compliance with it;
(c) the prejudice to the defaulting party if relief were not granted; and
(d) the prejudice to the innocent party if relief were granted.[39]
25 The order of 18 July 2008 was made at a time when the proceeding was nearly 10 years old and against a background of persistent non-compliance by the plaintiffs with court procedures and orders. The Court of Appeal in the Jorgensen case described Mr Jorgensen as a "serial defaulter";[40] the same may be said of the plaintiffs in this proceeding. The defendants had had inspection from February to April 2004 and it appeared that, for some time Mr Jorgensen, on behalf of the plaintiffs, took the position that they should not be entitled to a further inspection. When the defendants' present solicitors were retained in September 2006 they pressed for better discovery. On 9 May 2008 the Master ordered the plaintiffs to give inspection by 30 May 2008. This date passed without any apology or explanation from the plaintiffs for their non-compliance. Later, reliance was placed on the fact that the documents were in some disarray - some were held by earlier solicitors and some were in storage. It is very surprising that documents which are important for the presentation of a claim of this size should have been permitted to fall into such a state. When the order of 18 July 2008 was made, the Master was told that the plaintiffs would be able to arrange the documents and to have them in Melbourne and available for inspection by 22 July 2008.
26 The reason for non-compliance with the self-executing order offered by Mr Jorgensen was that, after the inspection on behalf of the defendants in 2004, the documents were put into storage in Albury when he went overseas. Upon his return to Australia in 2005, he had the documents sent to his home at Clifton Beach, north of Cairns. Some of them were stored there in a garage and some at his brother's home in Cairns. In or about December 2006 he sent the documents to Brisbane for his solicitors to organise before sending them on to Melbourne for the defendants to inspect again. He said all of the documents in his possession were dealt with this way. It may have been that some documents were mislaid in the course of these moves. All of this appears from an affidavit which was said to have been sworn by Mr Jorgensen on 29 July 2008.
27 This explanation is of doubtful accuracy. William Kenworthy, a solicitor employed by Lillas & Loel Lawyers, the solicitors for the plaintiffs from April 2007 to March 2009, said that Mr Jorgensen told him that the documents had been sent to Brisbane on 9 July 2008, not December 2006. Mr Kenworthy attended Mr Jorgensen's premises in Clifton Beach in September 2008 and found among the boxes of documents in his garage many of the missing documents relating to this case. Upon a visit to Albury on the following day, he found no documents there.
28 I conclude from all of this that the principal reason for the plaintiffs' non-compliance was Mr Jorgensen's careless attitude to the court orders and to the plaintiffs' own interests in this litigation. He appears to have paid scant regard to his obligation to gather and retain his documents so that they might be available for trial. As to whether this was because of his neglectful regard to his obligations or to some resentment that the defendants required a second inspection, I do not know.
29 The prejudice to the plaintiffs in the event that this appeal be summarily dismissed is obvious enough. Whatever expectation they had of success at trial would be defeated. Perhaps their neglect of their own interests, the difficulty they had in formulating an arguable claim and their lack of any active pursuit of their claim suggest that they had little confidence in their prospects. As to this I make no finding.
30 The prejudice to the defendants if relief were granted is that they will have to face a trial. This raises some of the issues which are relevant to the defendants' strike out application. The prejudice lies in the fact that they will be required to lead evidence upon conversations which occurred 14 years ago from now and, perhaps, 15 years from trial. The three bank officers who are mentioned in the statement of claim as participating in the conversations giving rise to the critical issues are Mr Unwin, Mr Charlton and Mr Riddiford. All of them have since retired: Mr Unwin in 1998, Mr Riddiford in 2002 and Mr Charlton in 2005. Mr Riddiford is now about 66 years old and, in 2007 his memory of the events was said to be good. Mr Unwin has little recollection of events except insofar as this may be refreshed by reference to the bank documents. Mr Charlton has only a general recollection of the events. It may be supposed that the retirement of these persons, so that they are no longer concerned with the day-to-day activities of the bank, will mean that their recollection is more fragile.
31 A further consideration upon which I place some weight is the plaintiffs' sorry history of neglect of their obligations as litigants. The chronology shows persistent and repetitious default. While the need for the court to assert its authority is a factor, it must always give place to its obligation to do justice to the parties before it - all of the parties. The neglect here is one which I place at the feet of Mr Jorgensen and not his lawyers. In all the circumstances, I see in this case no reason to relieve him and the plaintiffs of the consequence of this neglect. The appeal against the order of Daly AsJ of 18 May 2009 will be dismissed. The proceeding, therefore, will stand dismissed by reason of the plaintiffs' failure to comply with the order of 18 July 2008.
32 Having concluded that the proceeding was dismissed on 29 July 2008 by the operation of the self-executing order made on 18 July 2008, it is not necessary that I consider the defendants' appeal against the Master's order of 9 May 2008 refusing to strike out the proceeding for want of prosecution. Nevertheless, in deference to the submissions of counsel and in case the matter may go further, I will briefly venture my views.
33 Point was made on behalf of the defendants that the proceeding was commenced on the eve of the expiry of the three year limitation period then applicable for misleading and deceptive conduct claims.
34 It is by no means certain that the misleading and deceptive conduct claim[41] was brought within this limitation period. The representations are said to have been made in a period which ends on an unspecified date in September 1995. The loss of Mantonella by the misleading and deceptive conduct arose because it would not have paid the $150,000 in August and September 1995[42] had the representations not been made and it would not have been compelled to pay more than the market price when it acquired the plant and equipment in November or December of that year.[43]
35 In any event, this Mantonella claim is a modest one in terms of the damages sought in the proceeding and in terms of the proceeding generally. Most of the claims in the proceeding have a six year limitation period so that the proceeding was initiated comfortably within that period. This means that the plaintiffs might have commenced the proceeding for most claims prior to late 2001 within the terms of the statute.
36 The period of time which was principally relied upon was the time from events in 1995 to the likely date of trial. That period of perhaps 15 years, I have summarised in the attached chronology. A number of particular periods of delay can be identified:
(1) The period of nearly 12 months until service of the originating process.
(2) The period of some 33 months from the date of service until an acceptable statement of claim was filed on 24 July 2002.
(3) The period of some 19 months from the date of the statement of claim until inspection of documents was given to the defendant on 9 February 2004. In fact issues regarding inspection of the plaintiffs' documents continued for a further two years after that.
(4) The period of some two years since Minter Ellison began acting for the defendants on 22 September 2006 until the operation of the self-executing order on 29 July 2008.
(5) The 12 month period from that date to the present.
37 Before I undertake an assessment of these delays, I should underline a matter which causes difficulty in this. It is that the solicitor for the plaintiffs who appeare4d to present their case appeared to have little knowledge of the history of the proceeding. I have already mentioned that she did not have her predecessors' files. Although she had been acting for some three months, it seems that she had not obtained instructions as to the reasons for delay. This means that I am confronted with a bald chronology prepared by the defendants but without the usual explanations and excuses which are offered by respondents to these applications.
38 Next, I observe that, notwithstanding the size of the claims, the liability issues are not really very complex. Damages may involve more complex and contentious matters. Fundamentally this is not a big case.
39 A feature of all periods of delay other than the first is that there had been no real period of inactivity by the plaintiffs. Little progress was made but this was due to the fact that the plaintiffs appear to have had enormous difficulty in taking the most routine of procedural steps. If it were not for the number of changes to the plaintiffs' legal representation, I might have entertained the possibility that this was due to lawyers' incompetence. I am not prepared to accept, however, without some evidence, that each of the 12 firms of solicitors was incompetent or neglectful of their clients' interests. It is a more likely inference that the clients themselves failed to provide proper instructions to enable the matter to progress or failed to put the lawyers in funds.
40 I am satisfied that the first and second periods of delay were unexplained and that no good reason for them has been demonstrated. It cannot be denied that they are attributable to the plaintiffs' neglect.
41 The third period concerns the plaintiffs' discovery. Again, I have little detail as to this. I do not know why the plaintiffs had to file so many affidavits of documents and when this was done, why were the discovered documents not retained and kept in an orderly state for inspection and ultimately for use at trial? I was told that Mr Jorgensen was involved in other litigation which occupied his time. This is not really an acceptable explanation for a failure to pursue a claim for over $20m. I conclude that, whatever be the reason for this delay, it lies at the feet of the plaintiffs.
42 In the fourth period, the parties were principally involved in disputes about interrogatories and the defendants' claims for security for costs. I sense, too, that the new solicitors for the defendants pressed their clients' cause with more force than had previously been the case. This is not a case where the defendants sat quietly as time passed. Perhaps this should have had the consequence that the proceeding should have moved more speedily, but this was not to be. Pressing one's clients' cause, even for a defendant, is not a cause for criticism in adversary litigation. All that can be said about this period is that, in the context of the modern litigation environment, three years is an inordinate time to take the few steps that were achieved in this period.
43 I have already described the way the case moved through the fifth period.[44]
44 A feature of the interlocutory process in all of these periods has been, as I have observed, the plaintiffs' failure to comply with the Court procedures and the timetables fixed from time-to-time and their frequent failure to attend court hearings. This has had the consequence, not only of delaying the proceeding, but of causing the defendants to incur unnecessary costs in correspondence and otherwise. Nor have the plaintiffs heeded the warnings contained in the various applications to strike out their claims for want of prosecution or in the self-executing orders made.
45 I conclude in respect of each of the periods that the plaintiffs have been guilty of delay which was inordinate given the issues and given the steps that were taken in each period. There was little attempt to explain these delays or to excuse them. I have mentioned the possibility that an explanation might lie in the failure of Mr Jorgensen or any other officer of the plaintiffs to provide instructions or to put the lawyers in funds. The first is not, without more, an excuse. There is no evidence about the latter - no evidence of the plaintiffs' financial situation throughout the past decade or so which might lead me to conclude that they were doing the best they could given available resources, rather than applying their resources to some more pressing or commercially attractive project. The delays were, in each of the periods, inexcusable.
46 The question of prejudice really depends upon the impact of delay upon the minds and recollections of the witnesses so that a proper trial cannot be conducted. From my reading of the pleadings it is not correct to characterise this as "a document case". The documents will doubtless be important, but much, it seems, will turn upon the recollections of the three retired bank officers mentioned in the particulars.[45] I have already described their recollections of the events.[46] A subsidiary submission in this context was that Mr Meredith is accused of professional impropriety inasmuch as it is alleged that he entered upon the premises and took possession of the plant and equipment believing that he had no lawful right to do so. It was put that, for a man in his position, it is a particular prejudice that this allegation has been permitted to lie undetermined for 11 years. As I mentioned in argument, I am not minded to place great weight on this in the circumstances of this case.
47 If it had been necessary that I reach a conclusion in this appeal, I would have allowed it and dismissed the proceeding for want of prosecution. I would have done so because, as a consequence of the inordinate and inexcusable delays attributable to the plaintiffs, there is a substantial risk that a fair trial of the central issues in this case cannot be had so long it is after the events that give rise to them.
48 It follows that, the appeal of the plaintiffs brought by notice filed on 22 May 2009 will be dismissed. In the circumstances, the defendants appeal brought by notice filed on 15 May 2008 cannot be resolved. It will fall with the dismissal of the proceeding.
Agreement to vary the sale agreement and deferral of securities agreement.
Appointment of Mr Meredith as receiver and manager.
The National Australia Bank filed an appearance on this date (the National Australia Bank was not served until around one year after the writ was issued).
Ferrier Hodgson (third defendant) filed an appearance on this date (Ferrier Hodgson was not served until around one year after the writ was issued).
Defendants' first summons seeking an order that the proceeding be struck out on the ground that no statement of claim filed.
The first application for dismissal for want of prosecution.
Master Kings dismissed the defendants' summonses and extended the time for the plaintiffs to file and serve their statement of claim to 16 December 1999.
Statement of claim struck out. Plaintiffs given leave to file and serve an amended statement of claim by 15 May 2000.
Plaintiffs filed second statement of claim (four days late).
Further document entitled 'statement of claim' filed.
Master Evans ordered that the statement of claim of 19 May 2000 and 5 June 2000 be struck out. Leave to file a further statement of claim by 1 August 2000.
Plaintiffs filed fourth statement of claim (two days late).
Master Wheeler ordered statement of claim be struck out. The Master made the first self-executing order that the plaintiffs file a further statement of claim by 10 October 2000 and produce specified documents for inspection, in default of which the proceeding be dismissed.
Master Evans ordered that upon the defendants summons to strike out the statement of claim, that any amended be filed and served by 19 December 2001.
Master Wheeler ordered that the statement of claim of 20 July 2001 be struck out with leave to file an amended statement of claim by 16 July 2002.
A seventh statement of claim filed and served (eight days late).
Master Evans ordered the plaintiffs provide security for costs in the sum of $75,000.
Plaintiffs filed and served their first affidavit of documents.
Plaintiffs filed and served second affidavit of documents.
Solicitors for the defendants filed summons seeking order for inspection.
Master Wheeler ordered that the plaintiffs provide inspection of documents discovered in their affidavit of 1 July 2003.
Defendants inspected plaintiffs discovered documents.
Orders made on the papers requiring the parties to file and serve proposals for timetable for further interlocutory steps. Proceeding listed for directions on 16 September 2004.
Plaintiffs did not appear and the directions hearing was adjourned to 7 October 2004.
Orders made by consent for mediation and discovery and interrogatories.
Consent orders providing for the filing and service of interrogatories and date for mediation extended to 30 September 2005.
Further orders made by consent for interrogatories by 10 November 2005 with answers by 22 December 2005.
No appearance for the plaintiffs on directions hearing. Hearing adjourned to 10 March 2006.
Order that the defendants file and serve a request for further particulars of statement of claim by 13 February 2006 and particulars be provided by 6 March 2006. Interrogatories by 27 March 2006 with answers by 17 April 2006.
Defendants filed a request for further particulars.
Plaintiffs provided further particulars (eight days late).
Plaintiff filed answers to interrogatories (six months after the due date ordered on 19 October 2005 and 50 days after the due date ordered on 6 February 2006).
Minter Ellison commenced acting for the defendants.
Plaintiffs filed summons seeking answers to interrogatories and further discovery.
Master Kings ordered the bank to answer to only two interrogatories.
Minter Ellison wrote regarding inadequacy of discovery.
Master Daly ordered a further $112,500 security; in the event that the security be not provided by 18 June 2007 the proceeding be stayed.
Defendants bring second application to dismiss the proceeding for want of prosecution.
Master Daly made second self-executing order requiring payment of the further security by 13 February 2008, in default of which proceedings stand dismissed.
Master Daly refused the plaintiffs' application to extend time for payment of further security.
Defendants' application to dismiss the proceeding for want of prosecution dismissed. Master ordered the plaintiffs provide discovery by 30 May 2008.
Defendants filed a notice of appeal against Master Daly's order. This is one of the appeals before the Court in this proceeding.
Defendants' solicitors inspected documents. Not all the plaintiffs' documents available for inspection.
Master Daly made third self-executing order that the plaintiffs provide inspection of their discovered documents by 29 July 2008 in default of which the proceeding stand dismissed.
Solicitors for the defendants inspected further documents. Not all documents available for inspection.
Solicitors for the defendants wrote to the solicitors for plaintiffs asserting that the proceeding was dismissed for non-compliance with the order of 18 July 2008.
Master Daly ordered that application and affidavit in support of application to set aside orders of 18 July 2008 be filed and served by 24 September 2008.
Master Daly extended the date for filing of application and affidavits to 26 September 2008.
The plaintiffs' summons to set aside orders of 18 July 2007 filed and served.
Master Daly ordered that the plaintiffs file a further affidavit of documents on 20 October 2008 and that they make their discovered documents available for reinspection by 24 October 2008.
Plaintiffs further affidavit of documents sworn on 23 October 2008 served on solicitors for the defendant (seven days late).
Appeal from the order of Master Daly of 9 May 2008 refusing to dismiss the proceeding for want of prosecution. Appeal stayed by agreement pending a hearing of applications then on foot.
Master Daly made fourth self-executing order that plaintiffs file a further affidavit of discovery by 23 December 2008 and in default the plaintiffs' summons to set aside the dismissal of their proceeding stand dismissed.
Daly AsJ ordered that the plaintiffs' application of 26 September 2008 be stayed pending the filing of a notice of change of practitioner by 8 April 2009.
Daly AsJ dismissed plaintiffs' application to set aside judgment obtained for non-compliance with self-executing orders of 18 July 2008.
[1] This company was earlier called Consolidated Diecaster Pty Ltd. The date of name change does not appear and I shall refer to it simply as Thermeda.
[15] Statement of claim para 28, 33; defence para 28.
[27] Attachment A to the statement of claim para A(vii).
[31] Attachment A to the statement of claim para A(ix).
[34] Rather bravely called second further amended statement of claim.
[35] The plaintiffs in fact changed solicitors 13 times and were on occasions unrepresented.
[36] On 3 October 2000, on 12 December 2007, on 18 July 2008 and on 10 December 2008.
[38] [2008] VSCA 110 at [9].
[39] [2008] VSCA 110 at [11].
[40] [2008] VSCA 110 at [1].
[43] Statement of claim para 36; see para [17] above.
Mizzi Pty Ltd
Meredith & Anor [2009] VSC 367