Preston Erection Pty Ltd v Favelle & ors [2002] NSWSC 181

Preston Erection Pty Ltd v Favelle & ors [2002] NSWSC 181

The proceedings had been struck out by order of the Registrar on 9 September 1992 and had never been reinstated, so they were no longer on foot and any later orders or directions were nullities; in any event, the plaintiff's unexplained delay since the late 1980s would have warranted dismissal for want of prosecution because of grave prejudice to the defendants.

Jurisdiction
Australia
Judgment Date
18 February 2002
Procedural Posture
Notices of Motion Seeking Dismissal for Want of Prosecution / Hearing of Three Defendants' Notices of Motion
Outcome
Proceedings noted as struck out on 9 September 1992; later purported orders or directions declared of no effect; no order as to costs after that date.
Legal Topics
['strike Out' 'want of Prosecution' 'nullity of Orders After Proceedings Struck Out' 'delay and Prejudice' "directors' Liability for Company Debts"]
['civil Procedure' 'corporations'] ['strike Out' 'want of Prosecution' 'nullity of Orders After Proceedings Struck Out' 'delay and Prejudice' "directors' Liability for Company Debts"]

Case Brief

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Procedural Posture

Notices of Motion Seeking Dismissal for Want of Prosecution / Hearing of Three Defendants' Notices of Motion

Legal Issues

  1. 1 ['Whether the proceedings were already struck out by order made on 9 September 1992 and therefore no longer on foot.' 'Whether any purported orders or directions made after 9 September 1992 were of no effect.' 'Whether, if the proceedings were still on foot, they should be dismissed for want of prosecution due to unexplained delay and prejudice to the defendants.']

Ratio Decidendi

The proceedings had been struck out by order of the Registrar on 9 September 1992 and had never been reinstated, so they were no longer on foot and any later orders or directions were nullities; in any event, the plaintiff's unexplained delay since the late 1980s would have warranted dismissal for want of prosecution because of grave prejudice to the defendants.

Court Disposition

Proceedings noted as struck out on 9 September 1992; later purported orders or directions declared of no effect; no order as to costs after that date.

Orders

  • ['I note that these proceedings were by order of the Court, made on 9 September 1992, struck out, and that in consequence any purported orders or directions made thereafter are of no effect.' 'I make no order as to the costs of any party after 9 September 1992, to the intent that each party will bear its or his own...