A.N.T. Building Pty Ltd v Vibe Electrical Pty Ltd [2023] NSWSC 615

Catchwords: CIV IL PROCEDURE – whether proceedings should be dismissed for want of prosecution with due dispatch Supreme Court New South Wales Medium Neutral Citation: A.N.T. Building Pty Ltd v Vibe Electrical Pty Ltd [2023] NSWSC 615 Hearing dates: 8 June 2023 Date of orders: 8 June 2023 Decision date: 08 June 2023 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Application to dismiss proceedings to be dismissed; plaintiff to pay the costs of the application on an indemnity basis and by 28 July 2023 ; such costs to be assessed as a global figure; proceedings to be dismissed if those costs not paid Catchwords: CIV IL PROCEDURE – whether proceedings should be dismissed for want of prosecution with due dispatch Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Hoser v Hartcher [1999] NSWSC 527 Category: Procedural rulings Parties: A.N.T. Building Pty Ltd (Plaintiff) Vibe Electrical Pty Ltd (Defendant) Representation: Counsel: B Le Plastrier (Plaintiff) B Lloyd (Defendant) Solicitors: Flame Tree Legal (Plaintiff) Brander Smith McKnight Lawyers (Defendant) File Number(s): 2021/284342 EX TEMPORE JUDGMENT (REVISED) The plaintiff ("the Builder ") brings these proceedings against the defendant ("the Contractor "). The claim relates to contracts between the Builder and the Contractor in June 2015 and April 2016 arising from developments at Manly and Woollahra. The claim made by the Builder against the Contractor relates to alleged incomplete and defective work and delay. The matter before me today is the defendant's N otice of M otion of 12 April 2023 seeking an order under Uniform Civil Procedure Rules 2005 (NSW) , r 12.7(1) , that the proceedings be dismissed for, in effect, want of diligent prosecution. In April 2019 , the Builder commenced proceedings in the District Court of New South Wales against the Contractor making the same claims for incomplete and defective work and delay as are being made in these proceedings. The Builder prosecuted those proceedings so unsatisfactorily that in April 2020 the Contractor sought and obtained an order that those proceedings be dismissed for want of prosecution. The Builder commenced these proceedings on 6 October 2021 seeking, as I say, the same relief arising from the same matters as were made in the District Court proceedings. In these proceedings, o n 2 July 2022, by consent, an order was made that the Builder serve its lay and expert evidence by 14 October 2022. No evidence was served. The matter was before the Court on 3 February 2023, on which occasion the Builder proposed that the time to serve its lay evidence be extended to 28 February 2023 and the time to serve its expert evidence be extended to 6 April 2023. Recognising the position that it was in, the Builder proposed that those orders be subject to a guillotine order . I ndeed, in his affidavit made on 3 February 2023, the sole director of the Builder , Mr Gleeson, deposed that, "I understand that this means unless I comply with the order it is likely I will not be able to file any further evidence in the proceedings". The solicitor for the Builder deposes he spent much time in February 2023 working with Mr Gleeson to prepare Mr Gleeson's affidavit including, Mr Wells said, working with Mr Gleeson for 15 hours on 27 February and 19 hours on 28 February 2023. The affidavit was served in the early hours of 1 March 2023 . N othing turns on that slight delay. However, the affidavit referred to an exhibit containing 1534 pages. That exhibit was not served with the affidavit due to, apparently, difficulties uploading its bulk into Mr Wells' email system. It was not served until early May. The "explanation" given for that is that there was "pagination" and "cross-referencing" (or similar) problems. It is hard to understand how this could have caused such a delay. Mr Wells also has deposed that , despite all the work he did in February 2023, he did not have an opportunity to "review" the affidavit as he would "usually do" let alone have counsel cast his or her eye over the document. Ultimately, late in March 2023, Mr Wells got instructions to brief counsel. It was in that circumstance that the Contractor filed its motion of 12 April 2023 seeking to have the proceedings dismissed for want of prosecution. Despite the consent guillotine order of 3 February 2023 that the Builder serve its expert evidence by 6 April 2023, the relevant expert, Mr Adrian Jamieson, a quantity surveyor, was not retained until 12 May 2023. Again, no sensible explanation has been given for that delay. The position now is that the Builder has foreshadowed serving a further affidavit of Mr Gleeson today . This is s aid to be in the final stages of preparation , despite the fact that Mr Wells deposed on 12 May 2023 that Mr Gleeson's supplementary affidavit was "well advanced". Mr Wells has also deposed : “Generally, the supplementary affidavit is required to rectify various admissibility issues and rectify the exhibit (that is, replace black and white photographs with colour photographs, A4 pages with A3 pages and replace incomplete documents with complete documents). The supplementary affidavit will include evidence as to the time and date photographs were taken. It will also provide foundation for conclusions and include more precise details with respect to various aspects of Mr Gleeson’s evidence so that they plaintiff’s case can be better understood by experts, the defendant and the Court.” Mr Le Plastrier , who appears today for the Builder , informed me that as well as dealing with the matter to which Mr Wells deposed, the new affidavit will deal with some matters of substance. Mr Jamieson has sworn an affidavit confirming that he has been retained, and foreshadowing that he expects to be in a position to be able to produce a report by 28 June. Before me today also is the Builder 's notice of motion of 2 June seeking leave to rely upon "further lay evidence" and "expert evidence" in these proceedings. The leave that will be sought is to rely on Mr Gleeson's further affidavit and Mr Jamieson's report once they are to hand. T he circumstances in which a court will dismiss proceedings for want of prosecution are well-established, and include, as Simpson J (as her Honou r then was) stated in Hoser v Hartcher : [1] (a) t he ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed; (b) the discretion should be exercised only in a clear case where it is manifestly warranted … as is generally the case with discretionary decisions, each case depends upon its own facts; (c) any explanation offered by the plaintiff for the delay in proceeding must be considered; (d) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant. (Footnotes omitted.) This is a case where I have given serious consideration to taking the drastic step of dismissing the proceedings. I am however persuaded that notwithstanding the manner in which the Builder has been vexed by the way these proceedings have been conducted, it would not be in the interests of justice to shut the plaintiff out from pursuing a claim which may well have merit. Accordingly, I propose to give what the Builder should understand to be one last chance to get its house in order, and to diligently prosecute these proceedings to their conclusion. The Builder should understand that no further procedural delinquency of any kind, let alone of the kind that I have described in these reasons, will be tolerated. Accordingly, I propose to dismiss the Contractor 's notice of motion. Mr Le Plastrier , in his written submissions, somewhat ambitiously I thought, suggested the motion should be dismissed with costs. I do not propose to do that. I propose to order that, notwithstanding the fact that the motion is to be dismissed, the Builder pay the Contractor 's costs of the motion on an indemnity basis. I propose to assess those costs on an indemnity basis under section 98(4) of the Civil Procedure Act 2005 (NSW) . I propose then order that that figure be paid within 14 days, and order that if that amount is not paid, for that reason alone, the proceedings will stand dismiss ed . I propose to defer considering whether the Builder should have leave to rely upon Mr Gleeson's further affidavit, and Mr Jamieson's foreshadowed report, and also defer the question of whether, how and what terms, the Builder should pay any costs of the Contractor that will be thrown away should leave be granted. [The Court adjourned to enable the parties to consider His Honour’s reasons] Since giving the above judgment earlier today, the Builder has adduced evidence from Mr Gleeson to the effect that it issues payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) at the end of each month and usually receives payment s in response to those building claims around the middle of the following month. The moneys to be received in respect of the payment claims served at the end of May 2023 have been, Mr Gleeson says, "wholly allocated to pay staff wages, trade subcontractors and suppliers". Mr Gleeson deposes that the Builder anticipates serving payment claims at the end of June and to receive funds in respect of those payment claims around the middle of July. In those circumstances, Mr Gleeson deposes that , were the Builder obliged to pay a sum on account of the costs of the Contractor's motion prior to that, it would "need to pay that in priority to trades and suppliers and this will have adverse consequences on [the B uilder] carrying out and complying with its contract obligations to its clients". It appears to me that it is not in the interests of either party that the Builder's ability to continue trading be jeopardised . I n those circumstances I am persuaded that I should vary what I said this morning and order that if the Builder does not pay the sum I propose to fix as the Contractor's costs of its motion by 28 July 2023, then the proceedings will stand dismissed. As to what the gross sum costs order should be, I have received evidence from the Contractor's solicitor to the effect that the actual costs sustained by the Contractor is $19.594 , comprising solicitors' fees of $6,300, counsel's fees of $10,300 and the motion filing fee of $1,334. That total figure obviously represents the total of the costs actually incurred by the Contractor. I foreshadowed this morning that I would make an order that costs be on an indemnity basis. It may be that the total of $19,594 is marginally above the costs that the Contractor would recover on an indemnity basis. However, I see no reason to discount that figure for today's purpose. The parties should b r ing in short minutes to give effect to these reasons. ********** Endnote 1. [1999] NSWSC 527 at [20]-[23]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2023