These are proceedings by the plaintiff, SPS Building Contractors Pty Ltd, against the defendants, Keith Dyer Plumbing Pty Ltd, Gregory Crowe trading as Monster Bricklaying Pty Ltd, Joshua Grey, SKWP Pty Ltd as trustee for the SKWP Trust trading as S & K Waterproofing Gold Coast and Hamilton Hayes Henderson Architects Pty Ltd.
Two of the defendants, Keith Dyer Plumbing and SKWP, have applied to strike out the technology and construction list statement filed 19 December 2023 (TCLS) by the plaintiff and dismiss the proceedings pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 61 of the Civil Procedure Act 2005 (NSW) (CPA). Keith Dyer Plumbing and SKWP also seek an order that the plaintiff pay the defendants' costs of the proceedings as agreed or assessed.
The application is supported by the other defendants who also seek the same orders in their favour.
In short, the defendants say that the plaintiff has not prosecuted these proceedings with due despatch and therefore it should be summarily dismissed.
[2]
Related proceedings
On 20 August 2021, the Owners Corporation Strata Plan 99960 commenced proceedings in this court (Related Proceedings) seeking damages against the plaintiff (as defendant in the Related Proceedings) as the builder of a development of 45 townhouses in Tweed Heads South, New South Wales (Development). The Owners Corporation brought claims against the plaintiff alleging various defects in the Development and seeking damages for breaches of statutory warranties implied by section 18B of the Home Building Act 1989 (NSW).
On 6-10, 13-14 and 21 May 2024, the liability hearing of the Related Proceedings took place.
On 7 June 2024, judgment was delivered by Nixon J in the Related Proceedings on liability. In short, Nixon J held that the plaintiff was liable in respect of many of the claims which were made by the Owners Corporation.
On 3 September 2024, the quantum hearing of the Related Proceedings occurred.
On 3 September 2024, judgment was delivered by Nixon J in the Related Proceedings on the quantum of damages. In summary, Nixon J held that the plaintiff was liable to the Owners Corporation in the amount of $8,681,457.11 and also ordered that the plaintiff pay the Owners Corporation's costs of the Related Proceedings as agreed or assessed.
[3]
Chronology of these proceedings
On 19 December 2023, these proceedings were commenced by the filing of the summons and TCLS by the plaintiff.
On 20 December 2023, the plaintiff filed a Scott Schedule.
At the time of the filing of the TCLS and the Scott Schedule, the plaintiff's solicitors were Twomey Dispute Lawyers.
In summary, in these proceedings the plaintiff alleges that certain works at the Development were defective and seeks damages or alternatively contribution from the defendants as subcontractors responsible for those works and, as against Hayes Henderson, for their work as architects of the development.
On 20 February 2024, the plaintiff filed a notice of change of solicitor appointing Simon Taylor to act for the plaintiff in these proceedings in place of Twomey Dispute Lawyers.
Between 4 April 2024 and 7 May 2024, the defendants variously filed their technology and construction list responses denying the plaintiff's claims.
On 26 June 2024, the plaintiff's then solicitor, Simon Taylor, filed a notice of intention to file notice of ceasing to act.
On 4 July 2024, Simon Taylor filed and served a notice of ceasing to act. Since that time, it appears that the plaintiff has not instructed another solicitor to appear for it in these proceedings.
Simon Stone is the sole director, secretary and shareholder of the plaintiff.
On 25 July 2024, the solicitor for Keith Dyer Plumbing and SKWP sent an email to the director of the plaintiff, Mr Stone, asking him to confirm whether solicitors had been retained to act for the plaintiff and what orders the plaintiff would be seeking at the directions hearing on the following day, 26 July 2024.
On 25 July 2024, the solicitor acting for Joshua Grey sent an email to the parties and to Mr Stone, proposing orders for the progression of these proceedings.
On 26 July 2024, a directions hearing was held in these proceedings at which there was no appearance by the plaintiff. At that directions hearing, Ball J made orders adjourning the proceedings to 25 October 2024 and gave the parties liberty to apply on three days' notice.
On 26 July 2024, Mr Stone sent an email to the defendants' solicitors consenting to the orders that had been proposed on 25 July 2024.
On 26 July 2024, the solicitor for Keith Dyer Plumbing and SKWP sent an email to Mr Stone informing him of the orders made at the directions hearing on 26 July 2024.
On 12 September 2024, the solicitor for Gregory Crowe sent an email to Mr Stone requesting that he state whether the plaintiff intends to continue with these proceedings against Gregory Crowe and the other defendants. No response to that email has been received.
On 23 October 2024, the solicitor for Joshua Grey wrote to the parties and Mr Stone proposing orders for the progression of the matter.
On 24 October 2024, the solicitor for Gregory Crowe sent an email to the parties and Mr Stone proposing alternative orders for the progression of the matter.
On 24 October 2024, the solicitor for Hamilton Hayes sent an email to the parties and Mr Stone regarding the proposed orders for the progression of the matter.
On 24 October 2024, the solicitor for Joshua Grey sent an email to Mr Stone indicating that he would seek orders that the plaintiff is to inform the court whether it intends to prosecute the proceedings if the plaintiff failed to appear at the listing.
On 25 October 2024, the proceedings were listed for a directions hearing at which there was no appearance by the plaintiff. At that directions hearing, Stevenson J made the following orders:
1. Direct that by 5pm on 1 November 2024, the defendants file any notice of motion seeking to have the proceedings dismissed for want of prosecution.
2. Any such notice of motion and evidence in support to be served on the plaintiff by 5pm on 1 November 2024.
3. Direct that the motion be made returnable on 8 November 2024.
On 29 October 2024, the solicitor for Hamilton Hayes sent a letter to the plaintiff by email to Mr Stone and by express post to the plaintiff's registered office address which, amongst other things, informed the plaintiff of the orders made by Stevenson J on 25 October 2024, put the plaintiff on notice of Hamilton Hayes' intention to file a motion seeking orders to dismiss the proceedings, strongly recommended that the plaintiff seek independent legal advice and requested a response by 4pm on 31 October 2024. No response has been received from the plaintiff to that letter.
On 31 October 2024, the notice of motion making the present application was filed.
Also on 31 October 2024, the notice of motion and accompanying affidavit was emailed to Mr Stone and a hard copy of those documents was posted by express post to the plaintiff's registered office and principal place of business. On 1 November 2024, delivery of those documents to each of the plaintiff's registered office and principal place of business was confirmed.
On 1 November 2024, the solicitor for Gregory Crowe sent an email to Mr Stone which attached the affidavit on which Mr Crowe relied at the hearing today.
On 1 November 2024, the solicitor for Joshua Grey sent a letter by email to Mr Stone requesting that he state whether the plaintiff intends to prosecute these proceedings. No response has been received to this letter.
On 1 November 2024, the solicitor for Hamilton Hayes sent an email to Mr Stone which attached the affidavit on which Hamilton Hayes relied at the hearing today.
On 6 November 2024, the solicitor for Joshua Grey sent an email to Mr Stone which attached the affidavit on which Joshua Grey relied at the hearing today.
[4]
LEGAL PRINCIPLES
Rule 12.7(1) of the UCPR is in the following terms:
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.
Rule 12.7 provides a judicial discretion which is not required to be exercised within a rigid formula, the decision being one where the court must strike a balance between the parties to "decide whether or not on balance justice demands that the action should be dismissed": Stollznow v Calvert [1980] 2 NSWLR 749, Moffitt P at [6], citing Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405, Walsh J at 411. In Stollznow at [7], Moffit P further cited the judgment in Witten at 412 as follows:
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 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. 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.
It is also worth keeping in mind the matters referenced in Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 at [120]-[121] where Johnson J stated as follows:
[120] I am conscious that the power to order dismissal of proceedings for want of prosecution should not be lightly exercised: Fleet v State of New South Wales [2009] NSWSC 75 at [15]. On the other hand, as I observed at [18] of my earlier judgment, the Court should exercise that power if there is a proper basis for it, and will bear in mind the requirements on all litigants to comply with obligations under the Civil Procedure Act 2005 and the UCPR.
[121] The concept of proceedings being dismissed without a hearing is not a novel one. The provisions in ss 56-61 Civil Procedure Act 2005, when applied in a context such as this, may lead to such an outcome. As Campbell J (as his Honour then was) said in Szczygiel v Peeku Holdings [2006] NSWSC 73 at [7]-[13], this complex of statutory provisions in s.56-61 Civil Procedure Act 2005 means that it is within the specific intent of the statutory framework, in which the Court conducts its business, that it can on occasions be appropriate to dismiss proceedings, even though there has not been a hearing on the merits, in circumstances where there has been a failure to comply with directions.
In Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334, Macfarlan JA (with whom Leeming JA and Adamson J agreed) after emphasising that the discretion in r 12.7 of the UCPR is broad and not confined by rigid formula (citing Stollznow and Witten), said at [42]-[43] as follows:
[42] Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating "the just, quick and cheap resolution of the real issues in the proceedings" to the matters to be considered (s 56). As well, s 57 includes the "efficient use of available judicial and administrative resources" amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of "resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
[43] These considerations are of fundamental importance in determining an application for the dismissal of proceedings for want of due despatch, as they are to all other aspects of the conduct of civil litigation in this State. The primary judge had appropriate regard to these provisions in arriving at her decision to dismiss the proceedings.
Importantly, across a number of judgments, the following factors have been emphasised in the exercise of a broad discretion:
1. the length of time the proceedings have been on foot;
2. whether there has been a history of non-compliance with court orders; and
3. whether an explanation has been given for the failure to prosecute the proceedings and the nature of that explanation.
[5]
CONSIDERATION
Although these proceedings have only been on foot for nearly one year, since 26 July 2024 (over three months ago), the plaintiff has failed to engaged in any way with the progression of the proceedings, including by failing to appear at the directions hearings on 26 July 2024 and 25 October 2024. I am satisfied that the plaintiff was on notice of both of those directions hearings and failed to appear or explain why there had been no appearance.
The solicitors previously acting for the plaintiff have ceased to act since 4 July 2024 and no other legal representative has been appointed by the plaintiff in their place.
Since that time there have been repeated attempts by the defendants to progress the proceedings with the plaintiff but to no avail. There has been no appearance before me at the hearing of this application today, including after the plaintiff was called outside court. The plaintiff has failed to respond to repeated communications from the defendants asking the plaintiff to indicate whether it intends to continue with the proceedings against the defendants.
The technology and construction list is a venue where plaintiffs are expected to prosecute proceedings expeditiously, just as defendants are required to defend proceedings expeditiously. The plaintiff has not been meeting the requirements of a party in this list. No explanation has been put forward by the plaintiff in any correspondence as to why it has ceased engaging with the defendants and is not progressing these proceedings.
I am satisfied that the plaintiff was on notice of this application, the supporting affidavits and the hearing today.
The delay of three months since the plaintiff engaged with these proceedings must also been seen in the context of the judgment in the Related Proceedings against the plaintiff in the amount of $8,681,457.11. The plaintiff seeks contribution from the defendants in these proceedings to that judgment but has done nothing to advance that case, despite its liability for the defects having been crystallised in the Related Proceedings. Yet the plaintiff is doing nothing to advance its case against the defendants. The court should not countenance the languid and non-engaging approach taken by the plaintiff.
Accordingly, in all the circumstances I consider it is appropriate for these proceedings to be dismissed for a want of prosecution pursuant to rule 12.7(1) of the UCPR.
[6]
ORDERS
For the reasons set out above, I propose to make the following orders:
1. The proceedings be dismissed pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW).
2. The plaintiff is to pay the defendants' costs of the proceedings as agreed or assessed.
[7]
Amendments
12 November 2024 - Insertion - 'ex tempore'
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Decision last updated: 12 November 2024