Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167

Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167

Leave to cease acting was granted because the Plaintiff had, by words and conduct, withdrawn instructions and the solicitors could not be required to conduct a trial without instructions. The proceedings were dismissed because the Plaintiff had been given reasonable notice of the hearing, the renewed application to cease acting and the possible consequences of non-appearance, yet did not appear or provide any explanation; there was no utility in an adjournment, and if the trial proceeded generally no evidence would be read on the Plaintiff's behalf.

Jurisdiction
Australia
Judgment Date
22 February 2016
Procedural Posture
Equity Proceedings Concerning a Rejected Claim for a Total and Permanent Disablement Benefit Under a Group Life Policy / Hearing of the Plaintiff Solicitor's Application for Leave to File a Notice of Ceasing to Act and the Defendants' Application to Dismiss the Proceedings for the Plaintiff's Non Appearance
Outcome
Plaintiff's solicitor granted leave to file a notice of ceasing to act; Plaintiff's proceedings dismissed; Plaintiff ordered to pay the Defendants' costs of the proceedings.
Legal Topics
['leave to File Notice of Ceasing to Act' 'withdrawal of Instructions' 'non Appearance at Trial' 'dismissal of Proceedings Under UCPR Rule 29.7(4)' 'overriding Purpose of Civil Procedure' 'costs']
['practice and Procedure' 'civil Procedure' 'insurance' 'superannuation'] ['leave to File Notice of Ceasing to Act' 'withdrawal of Instructions' 'non Appearance at Trial' 'dismissal of Proceedings Under UCPR Rule 29.7(4)' 'overriding Purpose of Civil Procedure' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning a Rejected Claim for a Total and Permanent Disablement Benefit Under a Group Life Policy / Hearing of the Plaintiff Solicitor's Application for Leave to File a Notice of Ceasing to Act and the Defendants' Application to Dismiss the Proceedings for the Plaintiff's Non Appearance

Legal Issues

  1. 1 ["Whether the Plaintiff's solicitors should be granted leave under UCPR rule 7.29 to file a notice of ceasing to act shortly before the listed hearing." 'Whether the proceedings should be dismissed under UCPR rule 29.7(4) where the Defendants appeared but the Plaintiff did not appear.' 'Whether the Plaintiff had reasonable notice or knowledge of the hearing and of the possible consequences of non-appearance.' "Whether there was utility in adjourning the proceedings or proceeding with the trial generally in the Plaintiff's absence."]

Ratio Decidendi

Leave to cease acting was granted because the Plaintiff had, by words and conduct, withdrawn instructions and the solicitors could not be required to conduct a trial without instructions. The proceedings were dismissed because the Plaintiff had been given reasonable notice of the hearing, the renewed application to cease acting and the possible consequences of non-appearance, yet did not appear or provide any explanation; there was no utility in an adjournment, and if the trial proceeded generally no evidence would be read on the Plaintiff's behalf.

Court Disposition

Plaintiff's solicitor granted leave to file a notice of ceasing to act; Plaintiff's proceedings dismissed; Plaintiff ordered to pay the Defendants' costs of the proceedings.

Orders

  • ["Upon the application of the Plaintiff's solicitor, pursuant to UCPR rule 7.29, grant leave to the Plaintiff's solicitor to file a Notice of Ceasing to Act dated 18 February 2016." 'Order that the Notice may be filed forthwith.' "Order, upon the application of the Defendants, pursuant to UCPR rule 29.7(4), the...