Shayer v Bryron Bay Retirement Villages Pty Ltd [2016] NSWCATCD 13

Shayer v Bryron Bay Retirement Villages Pty Ltd [2016] NSWCATCD 13

Mr Shayer did not have a reasonable excuse for failing to attend the 14 July 2015 hearing. Although dismissal under s 55(1) was not justified because the claim had previously been held not to be misconceived or lacking in substance, there was no want of prosecution, and the proceedings were not shown to be vexatious, Mr Shayer's failure to produce the financial documents relied on by his expert prevented BBRV from obtaining its own expert evidence on quantum. That conduct unreasonably disadvantaged BBRV. Having considered the mandatory factors in cl 10(3), including Mr Shayer's familiarity with the proceedings, capacity to understand directions, psychiatric condition, and deliberate...

Jurisdiction
Australia
Judgment Date
11 February 2016
Procedural Posture
Strike Out Application in Retail Leases Proceedings / Application by Byron Bay Retirement Villages Pty Ltd to Dismiss Proceedings COM 14/00472 Before Final Hearing
Outcome
Byron Bay Retirement Villages Pty Ltd's application under cl 10(2)(a) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 was granted and proceedings COM 14/00472 were dismissed.
Legal Topics
['strike Out Application' 'dismissal of Proceedings' 'frivolous or Vexatious Proceedings' 'want of Prosecution' 'proceedings Causing Unreasonable Disadvantage' 'failure to Comply With Tribunal Directions' 'adjournment on Medical Grounds' 'guardian Ad Litem']
['retail Leases' 'civil Procedure' 'tribunal Procedure'] ['strike Out Application' 'dismissal of Proceedings' 'frivolous or Vexatious Proceedings' 'want of Prosecution' 'proceedings Causing Unreasonable Disadvantage' 'failure to Comply With Tribunal Directions' 'adjournment on Medical Grounds' 'guardian Ad Litem']

Case Brief

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Procedural Posture

Strike Out Application in Retail Leases Proceedings / Application by Byron Bay Retirement Villages Pty Ltd to Dismiss Proceedings COM 14/00472 Before Final Hearing

Legal Issues

  1. 1 ['Did Mr Shayer have a reasonable excuse not to attend the hearing on 14 July 2015?' "Should Mr Shayer's application be dismissed under s 55(1) of the Civil and Administrative Tribunal Act 2013?" "Should Mr Shayer's application be dismissed under cl 10 of Schedule 4 of the Civil and Administrative Tribunal Act 2013?" 'If not dismissed, should a guardian ad litem be appointed for Mr Shayer?' 'If the application was not dismissed, what orders should otherwise be made?']

Ratio Decidendi

Mr Shayer did not have a reasonable excuse for failing to attend the 14 July 2015 hearing. Although dismissal under s 55(1) was not justified because the claim had previously been held not to be misconceived or lacking in substance, there was no want of prosecution, and the proceedings were not shown to be vexatious, Mr Shayer's failure to produce the financial documents relied on by his expert prevented BBRV from obtaining its own expert evidence on quantum. That conduct unreasonably disadvantaged BBRV. Having considered the mandatory factors in cl 10(3), including Mr Shayer's familiarity with the proceedings, capacity to understand directions, psychiatric condition, and deliberate...

Court Disposition

Byron Bay Retirement Villages Pty Ltd's application under cl 10(2)(a) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 was granted and proceedings COM 14/00472 were dismissed.

Orders

  • ["Byron Bay Retirement Villages Pty Ltd's application for an order pursuant to 10(2)(a) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 is granted." 'Proceedings COM 14/00472 are dismissed.']