Vacuum Oil Pty Ltd v Stockdale

ent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order ..." In the present proceeding the judgment has not yet been entered. In the main proceeding the applicant seeks to recover moneys from the respondents, under s 592 of the Corporations Law, in respect of debts incurred to the applicant between February and April 1991. The primary reason given by Sackville J for making the orders was the failure of the respondents, on a number of occasions, to comply with the Court's orders relating to discovery coupled with the failure to provide any explanation of such failures. His Honour pointed to repeated delays involving additional expense in the proceedings. He considered that the conduct of the respondents was such as to demonstrate an unwillingness to co-operate with the Court or with the applicant to get the matter ready for trial. Moreover, the respondents even failed to appear before his Honour on 21 February 1995, when the application to strike out the defence and enter judgment was heard and decided. The order made on 1 March 1995 related to the interest claim and quantified the total amount due. The matter first came before me on 17 March 1995 for directions in relation to the present application. The hearing of the notice of motion was set down for 12 May 1995. On that date, without any further substantial compliance with orders by the respondents, counsel appeared for the six respondents and indicated that he perceived a clear conflict of interest between the first, second, third and sixth respondents ("the Yeung and Wong respondents") and those of the fourth and fifth respondents ("the Stafford respondents"). Counsel indicated on that occasion, that it was in his view necessary for the respondents to instruct new solicitors and for new counsel to be briefed. There was some short evidence filed in relation to the notice of motion. It was clear from the hearing on 12 May 1995 that there was indeed a real conflict of interest between the respondents. This evidence was not placed before Sackville J. Indeed, the clear conflict of interest which in my opinion exists, was not previously appreciated by the solicitor for the respondents, nor was it foreshadowed or adverted to at any stage prior to 12 May 1995. It was also clear that the lamentable delays in the matter had been occasioned as the result of the oversight and lack of any apparent attention to the conduct of the matter by the solicitor for the respondents. Indeed, in acknowledgment of this the solicitor handling the matter on 12 May 1995 did not demur to an order that she should meet the costs of the applicant of that hearing on an indemnity basis. On that date I adjourned the proceedings for 13 days to enable new legal representatives to be appointed. The application to set aside the judgment of Sackville J came before me on 25 May 1995 and it is opposed. The opposition is founded on the continuing failure to comply with the orders of the Court or to explain that non-compliance and the compounding of the appalling record of inattention and non-compliance. The evidence indicated that the failure to attend on 21 February 1995 was due to the making of a wrong entry in the diary of the solicitor. However, no satisfactory explanation has been given in relation to the recurrent failures to comply with previous court directions.