Micallef v Ofria [1999] NSWSC 113 (23 February 1999)

Last Updated: 8 October 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Micallef v. Ofria [1999] NSWSC 113

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4597/97

HEARING DATE{S): 23/2/99

JUDGMENT DATE: 23/02/1999

PARTIES:

Gerald Micallef (P1)

Norma Micallef (P2)

Roland Ofria (D1)

Marlene Ofria (D2)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. L. Tyndall (P1 & P2)

Defendant in Person

SOLICITORS:

John Burrell Solicitors (P1 & P2)

Defendant in Person

CATCHWORDS:

ACTS CITED:

DECISION:

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 23 February 1999

4597/97 GERALD MICALLEF & ANOR -v- ROLAND OFRIA & ANOR

JUDGMENT

1 MASTER: There is presently before me a notice of motion which was filed in Court this day on behalf of the plaintiffs, Gerald Micallef and Norman Micallef.

2 In that notice of motion the plaintiffs seek a number of items of relief against the defendants, Roland Ofria and Marlene Ofria.

3 At today's hearing Mr Roland Ofria, the first defendant appeared in person. I have treated him to be appearing not only for himself but also for his wife, Marlene Ofria, the second defendant.

4 The first substantive order of relief sought in the notice of motion is that contained in paragraph 2, which seeks an order for the defence of the first and second defendants to be struck out.

5 So far as I am aware, and this appears to be the understanding of the legal representatives of the plaintiffs, no defence has ever been filed by the defendant. Indeed, since the proceedings were instituted by summons, it would be strange if there had in fact been such a defence filed.

6 Accordingly, I shall disregard the application made by the plaintiffs in paragraph 2 of the notice of motion.

7 The second substantive item of relief sought in the notice of motion is an order that the cross claim of the first and second defendants be struck out.

8 I have already observed that the proceedings were instituted by summons. That document was filed on 31 October 1997. The summons seeks relief concerning certain commercial premises situate at and known as 431 Gardeners Road, Mascot.

9 It would appear that those premises were owned by the plaintiffs and the defendants as tenants in common, each of the plaintiffs between themselves holding their share in the subject premises as joint tenants and each of the defendants as between themselves holding their share in the subject premises as joint tenants.

10 Prayers 1,2 and 3 of the summons seek orders for the appointment of statutory trustees for sale of the subject premises, pursuant to the provisions of Division 6 of Part 4 of the Conveyancing Act 1919.

11 I have been informed that the subject premises have in fact already been sold and that the plaintiffs are no longer seeking the relief claimed in prayers 1,2 and 3 of the summons.

12 The remaining prayers of the summons relate to a claim by the plaintiffs that the defendants should provide an account of all money received and disbursed by them and any other person on their behalf in respect of the subject property and of the dealings and transactions of the defendants.

13 I have not been taken to any orders which might have been made, either by consent or otherwise, for the providing of such an account by the defendants. I will in due course come back to the matter of the relief sought by the plaintiffs in the summons.

14 The defendants on 23 December 1997 filed a cross claim. Somewhat curiously, since the proceedings were instituted by summons, the cross claim takes the form of a pleading.

15 However it does seek various items of relief. Essentially the relief which appears to be sought by the defendants in their cross claim is relief in respect of moneys expended by them in repairs and improvements to the subject property.

16 One might have thought that, if the defendants had expended money in relation to the subject property, details of that expenditure would have been relevant to the account which the plaintiffs are seeking that the defendant should provide, and that in due course, after the provision of the account and the taking of the various steps in relation thereto which are enumerated in prayers 1 to 11 of the summons, an inquiry of the nature contemplated in prayer 12 of the summons would be held, and that eventually the Court would upon such an inquiry make a determination either of an amount, as amounts payable by the defendants to the plaintiffs or asserted by the cross claim payable by the plaintiffs to the defendants.

17 Whilst it might be thought that in those circumstances the cross claim would not have been necessary, nevertheless the defendants should not be precluded, if they so desire, from having the nature of their relief set forth in and claimed by way of a cross claim (although. as I have already observed it, is somewhat curious that they have filed as a cross claim a document in the form of a pleading in proceedings which have been instituted by summons).

18 It would appear that this matter has a lengthy procedural history. Various solicitors have at various times acted for the defendant. Most recently, the firm of Haywards and Belinski acted for the defendant. Their retainer was determined by the defendants on 3 December 1998. However Horowitz & Bilinsky were acting for the defendants on 28 September 1998 when, by consent, orders were made in accordance with short minutes of order.

19 The first of those orders was that the defendants file and serve an amended cross claim within seven days. The terms of that order appear to contemplate that the defendants no longer wish to rely upon the cross claim which had been filed on 23 December 1997 --- that is some nine months previously.

20 In response to an inquiry by me during the course of today's hearing, Mr Ofria agreed that the defendants no longer wish to rely upon the cross claim which was filed on 23 December 1997.

21 The defendants however did not file and serve an amended cross claim, either within seven days of 28 September 1998 or at any time thereafter.

22 No explanation has been given to the Court as to why such an amended cross claim was not filed within the specified period, or indeed at any other time up to 3 December 1998 when the retainer of Horowitz & Bilinsky was terminated by the defendants.

23 Mr Ofria gave as an explanation for the failure of the defendants to file an amended cross claim after Horowitz & Bilinski ceased to act for him, that he did not have all the documents in the matter and that the documents had been retained by Horowitz & Bilinski.

24 I gather that that firm has declined to release those documents to the defendants until certain professional costs are paid.

25 Mr Ofria also made reference to awaiting a decision from the High Court. I do not understand that reference. If it is a reference to a decision of the High Court of Australia I do not understand how there can be any involvement of the High Court of Australia in the present proceedings, certainly not at the stage which the present proceedings have to this point reached.

26 Essentially, the plaintiffs submit that the cross claim filed on 23 December 1997 should be struck out for what amounts to (it was submitted) want of prosecution; that is, that the defendants have failed to comply with the consent order made on 28 September 1998, that they file an amended cross claim. Further, that the defendants failed to participate in the directions hearing before the Registrar on 11 December 1998; and further, that the defendants have failed to make adequate discovery.

27 In that last respect, it should be recorded that an order for discovery was made on 21 May 1998. The defendants filed a list of documents and subsequently an amended list of documents, that latter being filed on 15 June 1998.

28 The plaintiffs complain that even that amended list of documents is not complete, in that various documents referred to in correspondence between the parties and documents relating to at least one person who is said to have been a tenant in the subject property and also material relating to electricity accounts of the subject property have not been provided by the defendants to the plaintiff.

29 The plaintiffs rely upon the provisions of Part 5 rule 12 of the Supreme Court Rules. Subrule (1) of that rule provides,

Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, stay or dismiss the proceedings.

30 I have assumed, although I have not been taken to any express provision of the Rules in that regard, that the reference to a plaintiff in that subrule has equal application to a cross claimant who does not prosecute his cross claim with due despatch.

31 Not only does it appear that the defendants have not prosecuted with due despatch the cross claim filed by them on 23 December 1997, but it emerges that it is not that document which the defendants wish to advance as setting forth the claim that they wish to make against the plaintiffs.

32 I do not have before me any explanation as to the circumstances in which the defendants no longer are represented by solicitors. But I see from the letter which was sent by the solicitors for the plaintiff to the defendants personally on 11 February 1999 that it would appear that at the directions hearing before the Registrar on 9 February 1999 the Registrar suggested that the defendants should obtain urgent legal advice and representation.

33 There appears to be no adequate explanation for the defendants not having filed the amended cross claim which almost five months ago they appear to have been desirous of filing.

34 There is no adequate explanation for the defendants not having provided the additional information and documentary material sought in correspondence and by way of discovery from them at the insistence of the plaintiffs.

35 In those circumstances, therefore, I am satisfied that it is appropriate that I should at this stage of the proceedings strike out the defendants' cross claim which was filed on 23 December 1997.

36 There is also further substantive relief sought in the notice of motion filed by the plaintiffs this day, 23 February 1999. That is the relief sought in paragraph 4 of the notice of motion.

37 That paragraph seeks judgment for the plaintiffs for damages to be assessed. That appears to me to be a totally inappropriate claim for relief in respect of substantive proceedings which seek the giving of an account by the defendants.

38 Eventually, after the various procedural steps contemplated in the summons of being completed, it may be that when the ultimate inquiry has been conducted, the plaintiffs may be entitled to payment of an amount of money by the defendants.

39 There is no certainty of that result. As I have already observed, the defendants are fully entitled in the proceedings for an account, in order to raise all the matters concerning the expenditure by them on the said property which they appear to have wished to raise in the cross claim or in the amended cross claim.

40 It is totally premature for the plaintiffs at this stage to seek relief in the nature of summary judgment in proceedings which they have instituted seeking that there be an account taken of the dealings of the defendants with the subject property.

41 Accordingly I propose to dismiss the claim for relief contained in paragraph 4 of the summons.

42 DISCUSSION ENSUED CONCERNING COSTS.

43 MASTER: I make the following orders:

1. I order that the cross-claim filed by the defendants on 23 December 1997 be struck out.

2. I order that the application made by the plaintiffs in paragraphs 2 and 4 in the notice of motion filed by the plaintiffs on 23 February 1999 be dismissed.

3. I order that the costs of the aforesaid notice of motion be the plaintiffs' costs in the proceedings.

4. Stand over to Monday, 8 March 1999 before the Registrar for directions.

LAST UPDATED: 08/10/1999