Athari v Wandell Builders Pty [2018] NSWSC 771

Athari v Wandell Builders Pty [2018] NSWSC 771

The plaintiff had adequate notice of the listing and of the need to show cause, failed to comply with the timetable for appeal submissions, failed to obtain or note new representation, filed no motion for pro bono assistance, and failed to appear. In those circumstances the appeal had not been prosecuted with due dispatch, the defendant was prejudiced, and the plaintiff had not shown cause why the appeal should not be dismissed.

Jurisdiction
Australia
Judgment Date
24 May 2018
Procedural Posture
Appeal From Local Court Civil Decision, Seeking Leave to Appeal / Show Cause Referral Concerning Non Prosecution and Non Appearance
Outcome
Appeal dismissed; plaintiff to pay the defendant's costs.
Legal Topics
['appeal and Leave to Appeal' 'failure to Comply With Timetable' 'failure to Prosecute With Due Dispatch' 'non Appearance' 'dismissal for Want of Cause' 'costs']
['civil Procedure'] ['appeal and Leave to Appeal' 'failure to Comply With Timetable' 'failure to Prosecute With Due Dispatch' 'non Appearance' 'dismissal for Want of Cause' 'costs']

Case Brief

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Procedural Posture

Appeal From Local Court Civil Decision, Seeking Leave to Appeal / Show Cause Referral Concerning Non Prosecution and Non Appearance

Legal Issues

  1. 1 ['Whether the appeal should be dismissed where the plaintiff failed to comply with the timetable for written submissions.' 'Whether the appeal should be dismissed where the plaintiff failed to appear after notice and after the matter was referred to the Duty Judge to show cause.' "Whether the plaintiff's failure to prosecute the appeal with due dispatch caused prejudice to the defendant."]

Ratio Decidendi

The plaintiff had adequate notice of the listing and of the need to show cause, failed to comply with the timetable for appeal submissions, failed to obtain or note new representation, filed no motion for pro bono assistance, and failed to appear. In those circumstances the appeal had not been prosecuted with due dispatch, the defendant was prejudiced, and the plaintiff had not shown cause why the appeal should not be dismissed.

Court Disposition

Appeal dismissed; plaintiff to pay the defendant's costs.

Orders

  • ['The appeal is dismissed.' "The plaintiff is to pay the defendant's costs."]