Supreme Court New South Wales

Case Title: Haypen Pty Limited -v- Tiltcon Pty Limited

Medium Neutral Citation: [2011] NSWSC 404

Hearing Date(s): 6 May 2011

Decision Date: 06 May 2011

Jurisdiction:

Before: Hammerschlag J

Decision: Plaintiff's claim dismissed with costs

Catchwords: PROCEDURE - application to strike out - Uniform Civil Procedure Rules 2005 r 12.7(1) - delay - ongoing failure to comply with order to provide security – whether proceedings should be struck out for want of Despatch Legislation Cited: Uniform Civil Procedure Rules Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited: Barrington Black Austin and Co v Andrew Dickson [1997] EWCA Civ 1678

Texts Cited:

Category: Procedural and other rulings

Parties: Haypen Pty Limited - Plaintiff

Tiltcon Pty Limited - Defendant

Representation

- Counsel: Counsel:

M.K. Rollinson

J.S. Drummond

- Solicitors: Solicitors:

M.K. Rollinson - Counsel

Bateman Battersby Lawyers

File number(s): 2009/298827

Publication Restriction:

Judgment

1 By Notice of Motion issued on 29 April 2011 the defendant moves for an order striking out the proceedings for want of due despatch on the part of the plaintiff, as contemplated by Uniform Civil Procedure Rules Pt 12 r 12.7(1), which provides that if a plaintiff does not prosecute the proceedings with due despatch the Court may order that the proceedings are dismissed and make such order as the Court thinks fit.

2 The parties entered into a contract under which the defendant carried out construction for works for the plaintiff on land at Kirrawee. The defendant obtained adjudication determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW) and thereafter judgments requiring the plaintiff to pay to it $452,352.39 and $187,352.99 respectively. The plaintiff paid.

3 The plaintiff commenced these proceedings on 3 April 2009 seeking to recover the amounts. The proceedings were preceded by proceedings in the District Court, in the Corporations List and in the General List of this Division. The history is set out in the affidavit of Michael William Battersby sworn 29 April 2011. The plaintiff accepts the accuracy of that affidavit and itself led no evidence on the motion.

4 On 3 December 2010 the principal proceedings were fixed for hearing on an estimate of seven days, to commence on 9 May 2011, and the parties were ordered to attend a mediation.

5 Despite attempts made by the defendant to arrange a mediation (which are described in Mr Battersby's affidavit) it was unsuccessful in doing so.

6 The defendant has cross-claimed for moneys approximating $60,000 which it says remains owing to it under the contract.

7 On 17 January 2011 the defendant filed a Notice of Motion seeking an order that the plaintiff provide security for costs in the sum of $60,000.

8 On 25 February 2011 I ordered the plaintiff to provide security in the sum of $57,000 to be provided by depositing that sum with the Court by 18 March 2011, failing which the proceedings were to be stayed. I stood the proceedings over for further directions to 25 March 2011.

9 The proceedings came before me again on 25 March 2011. The plaintiff had failed to pay the amount into court. I vacated the hearing date. The proceedings were adjourned until 8 April 2011 for directions.

10 On 26 March 2011 solicitors then acting for the plaintiff ceased to act.

11 On 8 April 2011, when the matter came before me, the plaintiff still had not provided security. The proceedings were stood over to 6 May 2011. The defendant was given leave to file and serve a motion for dismissal of the proceedings by 29 April 2011 and to make it returnable on 6 May 2011.

12 At that point the plaintiff indicated that it was considering filing a Notice of Motion to seek orders substituting personal guarantees of the directors of the plaintiff for the cash security.

13 The plaintiff has provided no security. No motion has been brought to vary the terms of the order for security. Mr Rollinson of counsel, candidly informed me that he has no instructions in that regard. There is no indication that the plaintiff will provide the security.

14 Given the plaintiff's failure, the defendant now moves for the plaintiff's claim to be dismissed.

15 Mr Rollinson put a submission that the plaintiff's claim should not be dismissed unless the defendant's cross-claim was also dismissed or discontinued. In support of this submission he relied on Barrington Black Austin and Co v Andrew Dickson [1997] EWCA Civ 1678.

16 There the plaintiff had brought a claim for a small amount of money. The defendant had brought a counter-claim for far a more significant amount. At first instance the Court struck out the counter-claim. The Court of Appeal considered this result to be unjust, given that counter-claim had been struck out in circumstances where both parties had been guilty of delay, leaving the claim, which was a virtual mirror image of the counterclaim, on foot. It considered that in those circumstances there should have been an order that the plaintiff's claim be dismissed as well. On appeal the plaintiff agreed that its claim should also be struck out.

17 That case is materially distinguishable from the present one. It is in the plaintiff's hands to avoid dismissal of its claim simply by providing security. In the alternative, those standing behind the plaintiff and who will benefit by the litigation could offer to make their assets available, in which event the Court might well vary the order for security. The plaintiff has provided no security and those standing behind it have remained silent. Also, there has been no discernible default by the defendant. It remains, of course, to be seen whether the defendant will prosecute its cross-claim, but, in all the circumstances of this case, it seems to me that the claim should be dismissed for want of due despatch.

18 The plaintiff's claim is dismissed with costs. The plaintiff is to pay the defendant's costs of the Motion.

The proceedings were stood over to 27 May 2011 for directions.

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