Eighty Eight Construction Pty Ltd v PPK Willoughby Pty Ltd [2015] NSWSC 847

Eighty Eight Construction Pty Ltd v PPK Willoughby Pty Ltd [2015] NSWSC 847

The plaintiff/cross-defendant had been given every opportunity to get its case ready for hearing before the Referee but failed to retain a solicitor, comply with relevant procedural and referee directions, pay required security for the Referee's costs, or organise expert joint reports, and gave no adequate explanation. Accordingly it had not conducted the proceedings with due despatch and summary dismissal under UCPR r 12.7 was warranted.

Jurisdiction
Australia
Judgment Date
26 June 2015
Procedural Posture
Equity Division Technology and Construction List Proceedings Concerning a Building Contract and Cross Claim for Defects / Notice of Motion for Summary Disposal for Want of Due Despatch Under UCPR R 12.7
Outcome
The plaintiff/cross-defendant's summons and list response to the amended cross-claim were dismissed; judgment was entered for the defendant/cross-claimant, with damages on the cross-claim to be assessed by the Referee; costs were ordered against the plaintiff/cross-defendant.
Legal Topics
['summary Disposal' 'want of Due Despatch' 'order for Reference' "security for Referee's Costs" 'building Contract Termination' 'defective Building Work']
['civil Procedure' 'construction Law'] ['summary Disposal' 'want of Due Despatch' 'order for Reference' "security for Referee's Costs" 'building Contract Termination' 'defective Building Work']

Case Brief

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Procedural Posture

Equity Division Technology and Construction List Proceedings Concerning a Building Contract and Cross Claim for Defects / Notice of Motion for Summary Disposal for Want of Due Despatch Under UCPR R 12.7

Legal Issues

  1. 1 ["Whether the plaintiff/cross-defendant's proceedings and response to the cross-claim should be dismissed for want of due despatch pursuant to UCPR r 12.7." 'Whether judgment should be entered for the defendant/cross-claimant with damages on the cross-claim to be assessed by the Referee.']

Ratio Decidendi

The plaintiff/cross-defendant had been given every opportunity to get its case ready for hearing before the Referee but failed to retain a solicitor, comply with relevant procedural and referee directions, pay required security for the Referee's costs, or organise expert joint reports, and gave no adequate explanation. Accordingly it had not conducted the proceedings with due despatch and summary dismissal under UCPR r 12.7 was warranted.

Court Disposition

The plaintiff/cross-defendant's summons and list response to the amended cross-claim were dismissed; judgment was entered for the defendant/cross-claimant, with damages on the cross-claim to be assessed by the Referee; costs were ordered against the plaintiff/cross-defendant.

Orders

  • ["The plaintiff/cross-defendant's summons dated 14 March 2014 and amended list statement dated 8 December 2014 be dismissed, pursuant to UCPR r 12.7." "The plaintiff/cross-defendant's list response to the amended cross-claim dated 10 September 2014 be dismissed, pursuant to UCPR r 12.7." "Judgment be entered...