Building Insurers' Guarantee Corporation v Touma [2010] NSWSC 4 (13 January 2010)

Last Updated: 18 January 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Building Insurers' Guarantee Corporation v Touma [2010] NSWSC 4


JURISDICTION:


FILE NUMBER(S):
10984/2006

HEARING DATE(S):
26 November 2009

JUDGMENT DATE:
13 January 2010

PARTIES:
Building Insurers' Guarantee Corporation (Plaintiff)
Daniel Touma (First Defendant/Cross Claimant)
Gold Holdings Pty Ltd (Second Defendant)
Summing Up Services Pty Ltd t/as A L Wood Engineer (Third Defendant/First Cross Defendant)
Burwood City Council (Second Cross Defendant)

JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:


SOLICITORS:
Mills Oakley Lawyers (Plaintiff)
DLA Phillips Fox (Second Cross Defendant)


CATCHWORDS:
PRACTICE AND PROCEDURE – UCPR 12.7(2) – application to strike out defence where not conducted with due despatch – where defendant has failed to attend to orders for discovery – where plaintiff a stranger to the commercial transaction between the defendant and a third party from which the litigation arises - where proceedings effectively stalled until discovery completed – defence struck out

LEGISLATION CITED:
Civil Liability Act 2002
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Home Building Act 1989
Uniform Civil Procedure Rules

CATEGORY:
Procedural and other rulings

CASES CITED:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Stollznow v Calvert [1980] 2 NSWLR 749

TEXTS CITED:


DECISION:
Order that the first defendant's defence filed on 29 January 2009 be struck out with costs.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HARRISON J

13 January 2010

10984/2006 Building Insurers' Guarantee Corporation v Daniel Touma & Ors

JUDGMENT

1 HIS HONOUR: The plaintiff seeks an order by notice of motion filed on 18 September 2009 that Mr Touma's defence filed on 29 January 2009 be struck out pursuant to Uniform Civil Procedure Rule 12.7(2), because he has not conducted his defence with due despatch.

Background

2 In 1997 Mr Touma was a builder. In association with the second defendant he contracted, on or about 28 August that year, to construct 26 villas on land in Tangarra Street, Croydon Park. The third defendant allegedly provided design, supervision and periodic inspection and certification services with respect to the engineering components of the works. The fourth defendant is said to have inspected and certified the works pursuant to the Environmental Planning and Assessment Act 1979.

3 The second defendant owned the property and the villas that were constructed upon it. On approximately 11 August 1999 the Owners Corporation of Strata Plan 60805 became the owner of the common property. The plaintiff alleges that Mr Touma and the second defendant constructed the villas in a defective way that gave rise to a claim by the Owners Corporation against them for the costs of rectifying the defective work. When Mr Touma's insurer, HIH Casualty and General Insurance Ltd, failed in now well known circumstances, the plaintiff was called upon to indemnify the Owners Corporation as the beneficiary under a policy of insurance issued by HIH for the claims made upon its insured. This took the form of a claim by the Owners Corporation upon the plaintiff in respect of alleged breaches of statutory warranty in the same terms as the claim it had made upon HIH, which had become an insolvent insurer within the meaning of s 103F of the Home Building Act 1989. The indemnity concerned the costs of rectification of the defective works and associated expenses. Those costs exceeded $3M when the proceedings commenced on 28 February 2006 and appear to have increased since that time. The plaintiff paid the claim and the Owners Corporation subsequently assigned its rights in respect of the matters covered by the indemnity to the plaintiff. The plaintiff alleges that following the assignment it is entitled to recover from the defendants the amount it has paid.

History

4 The proceedings were transferred from the Consumer, Trader and Tenancy Tribunal to this Court on 10 July 2007. The progress of the proceedings since then is relevant to the present application. It is as follows.

5 On 1 September 2008 the matter was before the Registrar when it was adjourned for a period of 21 days at the request of Mr Touma for the stated purpose of allowing the defendants an opportunity to consider the plaintiff's answers to their request for particulars. When the matter returned on 22 September 2008 it was again adjourned for a further period of 21 days with an order that the defendants were required to file and serve any application for an order that the plaintiff provide further and better particulars of the amended statement of claim by 20 October 2008. An unfiled motion seeking such an order was served on the solicitor for the plaintiff on that day.

6 On 27 October 2008 the matter came before the Registrar who made orders that the plaintiff provide the third defendant with copies of all documents provided to Mr Touma in response to the request for particulars by 7 November 2008. The proceedings were relisted for directions on 10 November 2008. The defendants had not filed any motion concerning further particulars by that date. The Registrar therefore made orders by consent that defences be filed by 1 December 2008, that the parties exchange categories for discovery by 15 December 2008 and that inspection take place by 17 February 2009. The proceedings were adjourned to 24 February 2009 for further directions.

7 Mr Touma served his defence on 30 January 2009. It purported in part to rely upon the apportionment provisions of the Civil Liability Act 2002, which were not inserted in the Act until 2004 and had no retrospective effect. The then solicitors for Mr Touma subsequently wrote to the plaintiff's solicitor on 18 February 2009 advising that they no longer acted for Mr Touma. A notice of ceasing to act was later filed.

8 When the matter came before the Registrar on 24 February 2009 Mr Touma was ordered to serve all unserved pleadings by 3 March 2009. The matter was adjourned to 23 March 2009. The Court was informed on that occasion that Mr Touma was then overseas. Mr Touma's former solicitors subsequently served upon the solicitors for the plaintiff another copy of what appears to have been his original defence together with two cross claims. The plaintiff's criticisms of the defence would appear never to have resulted in any amended defence being filed or served and the defence filed on 29 January 2009 remains the current pleading and the subject of the present motion.

9 On 23 March 2009 Mr Touma's wife appeared to represent him. Mr Touma did not appear in person. She advised the Registrar that Mr Touma was still overseas and would continue to be overseas for another four weeks. Mrs Touma advised that her husband required more time to organise legal representation. The proceedings were adjourned to 21 April 2009.

10 On 21 April 2009 the matter was adjourned to 19 May 2009 when Mrs Touma advised the Registrar that her husband would be back in Australia by that date. However, there was no appearance at the directions hearing on 19 May 2009 by Mr Touma as he was suffering from deep vein thrombosis that he had acquired on his return flight. The matter was adjourned by consent to 7 July 2009.

11 On 7 July 2009 the matter was again adjourned until 28 July 2009 with an order made that Mr Touma should pay the plaintiff's costs of the day. Mr Touma was warned that he needed to be in a position to advance the matter on the next occasion. Mr Shehadie, solicitor, appeared for Mr Touma to inform the Court that Mr Touma was then on medication for his condition and that the adjournment was therefore required.

12 Mr Sandroussi, solicitor, appeared for Mr Touma on 28 July 2009. The matter was adjourned to 11 August 2009 in order to give him an opportunity to obtain complete instructions from Mr Touma. He advised that Mr Touma's former solicitors, who had now ceased to act for him, were asserting a lien over the file for unpaid costs.

13 The matter returned to the Registrar on 11 August 2009 and Mr Sandroussi again appeared for Mr Touma. The matter was then referred to me in the Duty Judge list. I made orders that Mr Touma file and serve an affidavit by no later than 5.00pm on 25 August 2009 setting out steps taken by him in the course of the proceedings, particularly with respect to attempts to recover the file from his former solicitor, and the reasons for any delay in doing so. I adjourned the matter to 28 August 2009 and reserved costs.

14 The matter returned on 2 September 2009, rather than 28 August 2009 at the request of the parties. Mr Touma apparently furnished an affidavit dated 24 August 2009 explaining the reasons for the delay although it does not appear ever to have been filed and I have not seen it. Discovery was not advanced because Mr Touma did not provide the plaintiff with a list of categories for discovery. Mr Sandroussi informed me that he had not received the file in the matter from Mr Touma's former solicitors but that he expected to receive it that day or he would seek an order from the Law Society that it be provided to him. I made an order that on or before 4.00pm on 14 September 2009 Mr Touma file and serve an affidavit explaining why discovery had not been given, what steps had been taken to organise it and what his expectation was for discovery to occur. The proceedings were listed for further directions on 16 September 2009 and I reserved costs.

15 On 16 September 2009 Mr Sandroussi again appeared for Mr Touma but was unable to provide an adequate explanation as to why Mr Touma had not filed an affidavit in accordance with my order. I ordered Mr Touma to pay the costs of that day. I indicated that I would consider a motion to strike out Mr Touma's defence on the next occasion. The matter was adjourned to 23 September 2009. In the course of a short judgment delivered by me on that occasion I said the following:

"The affidavit that I directed to be filed has not been filed or served. I am informed by Mr Sandroussi today, who appears for the first defendant, that Mr Touma's response to the orders that I made [is] in effect to say that he has nothing to produce and accordingly nothing to discover. I am also advised that he is or will shortly be proceeding to his former solicitors armed with funds to ensure that he is provided with documents in the possession of his former solicitors, over which I assume they are asserting a lien.

Be all that as it may, Mr Touma would appear to have wholly misapprehended the basis of the orders that I made, if not the terms of the orders themselves. In order that there may be no doubt about it, Mr Touma should understand that I was interested to be informed on oath of the reasons why discovery had not been given and, having regard to the relevant antiquity of these proceedings, to be given a genuine estimate of when discovery might be provided in order that these almost stagnant proceedings can be revived. It is inappropriate for Mr Touma to have required Mr Sandroussi in his stead to appear here this morning and to inform me of the matters of which I have been informed. This court will not and I will not accept a cavalier attitude to orders that are made, and if Mr Touma anticipates that his reaction to my orders will go unnoticed or unrectified then he should think again."

16 Mr Touma appeared in person on 23 September 2009 and requested another adjournment, for a period of four weeks. He was cross-examined. Mr Touma indicated that he felt that he would be able to comply with an order for discovery "within a month". In those circumstances I adjourned the matter until 21 October 2009 for further directions and reserved costs.

17 Mr Sandroussi appeared for Mr Touma on that date and indicated that he had experienced some personal medical problems of his own that had interfered with his ability properly to attend to the matter on his client's behalf. In particular, Mr Sandroussi had been unable to assist Mr Touma to provide the outstanding affidavit that Mr Touma had been ordered to provide. Mr Sandroussi also indicated that he had been unable to obtain the entire file in the matter from the previous solicitor, who had died, but had been told he would receive it on 22 October 2009. He informed me that he had arranged to meet with Mr Touma on 27 October 2009 in those circumstances. The matter was adjourned over the plaintiff's opposition to 4 November 2009. Costs were reserved.

18 Mr Sandroussi did not appear on the next occasion as his retainer had by then been terminated. Mr Touma eventually appeared and informed me that he had been hospitalised for a cut to his head. He provided a medical certificate. He explained that Mr Sandroussi's retainer had been terminated as Mr Sandroussi had informed Mr Touma that it would take several months to review the material in the file and prepare evidence and Mr Touma said he believed that that was too long. Mr Touma informed me that he would be retaining Walid Kalouche as his new solicitor. He was due to meet with him on 9 November 2009. The plaintiff indicated that it would not consent to an adjournment except upon the understanding that its motion would be heard on the next occasion with no further adjournments. Mr Touma agreed to that course and indicated that he would be in a position to respond to the notice of motion on 20 November 2009. The matter was accordingly adjourned to that date.

19 The evidence reveals that Mr Touma did not ultimately retain Mr Kalouche to represent him. Mr Touma did not appear on 20 November 2009. He apparently informed the solicitor for the plaintiff on that morning that he was unwell with a severe headache that required a visit to hospital and that in the circumstances he was too ill to attend court. In those circumstances I adjourned the matter until 26 November 2009 for hearing before me.

20 On 26 November 2009 a solicitor appeared for Mr Touma and tendered another medical certificate from Dr Lina Sleiman dated 25 November 2009 that stated that Mr Touma was suffering from "migraine/gout" and that he would "be unfit for work" from "20 November 2009 to 27 November 2009 inclusive". Having regard to the terms of the certificate I indicated that I would reserve my decision on Mr Touma's application for an adjournment but I proceeded to hear the plaintiff's submissions on its motion in order that I could give judgment if I formed the view that Mr Touma's application for an adjournment was ill founded. I reserved judgment on the motion in those circumstances as well.

Mr Touma's adjournment application

21 As the brief history of the matter in this Court reveals, Mr Touma has not demonstrated an overwhelming enthusiasm for the tasks that have confronted him from time to time. His appearance before me on 26 November 2009 by his solicitor for no purpose other than to have me accept that his condition of "migraine/gout" precluded him from meaningfully responding to the plaintiff's motion is wholly unconvincing. The evidence reveals that in a conversation on 20 November 2009 between Mr Touma and Ms Rayfield, a solicitor retained by the plaintiff, he was informed of the nature and effect of the plaintiff's application. When Mr Touma told her that his headache was so bad that he could not attend court on that morning, Ms Rayfield said, "if you don't attend you may not be given the opportunity to put on evidence and documents to support your claim [sic, case]". Mr Touma is said to have responded by saying, "I have nothing anyway, not even a dollar. It won't make any difference what happens". Ms Rayfield replied, "I strongly recommend that you attend, or at the very least someone should attend for you".

22 The evidence also shows that Ms Rayfield went as far as to call Mr Kalouche in order to ascertain whether or not his firm had instructions to appear for Mr Touma. She was advised that Mr Kalouche was not acting for Mr Touma, as earlier noted.

23 In my opinion it is clear that Mr Touma has exhibited no genuine interest in the proceedings or their outcome and no amount of time concessions that may be afforded him would appear likely to alter that fact. As I observed on 20 November 2009:

"Mr Touma has not shown overwhelming enthusiasm for the tasks that confront him in this case and seems to have fallen into a reoccurring need to seek medical attention from time to time as the difficulties in this case rise and fall. My preference would be, because it would suit the convenience of the court, to have this matter come back at 10.00am on Friday of next week. I am indebted to you for the provision of your affidavit . . . today indicating that you have had conversations with Mr Touma who said he can't attend this morning because he "has a terrible headache and will be in hospital shortly". I must say that his absence, otherwise unexplained, is not particularly impressive from his point of view, but having regard to my concern about what in fact will be the immediate benefit or utility of striking out the defence today, I think that's the course I will adopt."

24 The plaintiff's motion has long been foreshadowed. The affidavit that on 2 September 2009 I directed Mr Touma to produce has never to my knowledge been either filed or served and I have no confidence that it was ever prepared. Mr Touma remains in breach of the order that I made in that respect. Mr Touma has engaged legal representatives to propound his interests and on more than one occasion. In remarks I delivered when the matter was before me on 4 November 2009 I noted, "Mr Touma informs me that he proposes next Monday to re engage his former solicitors and that he will be in a position when legally represented to respond on a final basis to the plaintiff's notice of motion within a period of two weeks thereafter". When earlier cross-examined before me it was apparent that he knew and understood the nature of the case against him and the extent of the plaintiff's concern that it obtain discovery from him as an important aid to its ability to make some progress in the matter. It may be not unexpected that Mr Touma considers providing the plaintiff with any assistance to be inimical to his interests. However, that is as may be. There was by 26 November 2009 no demonstrated basis for the grant of the further adjournment that he sought and no realistic or meaningful indication of what was likely to be achieved if it was granted or by when.

25 In these circumstances I formally refuse to grant the adjournment that Mr Touma seeks.

The plaintiff's motion to strike out Mr Touma's defence

26 I raised at one stage with the solicitor for the plaintiff what she perceived to be the utility in striking out Mr Touma's defence, having regard to the nature of the case brought by the plaintiff and the issues that it would be required to establish even in the absence of a defence. That discussion, on 20 November 2009, included the following:

"HIS HONOUR: What do you anticipate would happen to the proceedings if the defence . . . were struck out?

RAYFIELD: My understanding is that this is a liquidated claim so there would be no need to move for summary judgment. We would instead be filing for a default judgment on the amount of the liquidated claim. Although it is a building matter to do with defects and so on and so forth, I believe it is pleaded as being in response to an indemnity. This is an insurance claim that has been paid out and the matter is a recovery matter for that amount paid out.

*****

HIS HONOUR: I am just concerned with this question about whether or not it is a liquidated claim. Why wouldn't Mr Touma be entitled to have the appropriateness of the amount paid out calculated by reference to the work that was performed?

RAYFIELD: I am just looking for the relevant pleading regarding indemnity that I was referred to this morning. In the absence of any pleading that the claim is pursuant to an indemnity, I would have to agree with you that we would need to seek summary judgment instead. Of course the works have been completed, so the claim would be on the basis of either consulting that it is the actual cost, but my experience is typically that all the same there is a chance to consider that cost.

HIS HONOUR: . . . I need to understand the utility of striking out his defence, if you are not able without an assessment hearing and proof of the loss you say you suffered to get any real benefit from eliminating him [as] an effective party in the proceedings. If you were entitled to file documents and obtain, as it were, judgment by default that's one thing, but if in fact you will be subject to a need to comply with the requirements for establishing your loss, that's another thing.

RAYFIELD: My submission would be there is benefit to either scenario from our point of view. To proceed to summary judgment on evidence is much less expensive than providing evidence and then having evidence in reply and serving a further round of evidence.

HIS HONOUR: When you say summary judgment--

RAYFIELD: We would still need to put the evidence before the court, of course, on that basis.

HIS HONOUR: But you are not making an application for summary judgment now.

RAYFIELD: No, I am not. I don't have that evidence here.

HIS HONOUR: You are seeking to strike out the defence because rules or orders have not been complied with. To move the court for a judgment, either summarily or in the absence of a defence, you would need to file evidence, it seems to me, unless you want to tell me otherwise, setting out the quantum of your claim and verifying that it was proper.

RAYFIELD: I agree with you on that point, yes. If you might allow me to stand the matter down very briefly, it's just that I was advised that this was pursuant to an indemnity and if that has not been pleaded then perhaps there is a further issue.

HIS HONOUR: It may be pursuant to an indemnity, but it is you indemnifying the parties who owned the building, not the builder, so as between the builder and the person in your position Mr Touma would still have the right to query the value of the works that are the subject of the indemnity that you have given to the owners.

RAYFIELD: You are correct in referring to an indemnity in those terms, but what I am referring to instead is an actual deed of indemnity which is often obtained by insurers in these circumstances and that I know existed between Mr Touma and the insurer in this instance. So if such a deed--

HIS HONOUR: Do you sue on that indemnity?

RAYFIELD: I was informed this morning that we did and I can't find it in the pleading now, and that was the basis on which I was told to say that there would be a default judgment applied for eventually. The point your Honour is making is a very valid one. If there was such a deed and we were pleading on the terms of that deed then I would submit it was a liquidated claim, but from what I can see it is not."

27 In this regard it is instructive to observe the particular portions of the defence that raise matters going beyond mere denials of the plaintiff's claim. Paragraphs 11, 18 and 19 of Mr Touma's defence are in the following terms:

"11. The first defendant denies the breach of any alleged Breach of Statutory Warranties [sic] as alleged in paragraph 14.

PARTICULARS

(a) The footings in the basement car park were completed to the specifications drawn up by the third defendant and certified by the certifying authority Burwood Council.

(b) The drainage to the basement car park was completed in accordance with the plans drawn up by the second and third defendants.

(c) The external and internal basement walls where [sic] completed in accordance with the plans and specification supplied by the second and third defendants.

(d) The damp courses and pest control were completed in accordance with the plans and specifications of the second and third defendants.

(e) The waterproofing on the podium level was completed to the plans and specifications of the second and third defendants and in addition was completed by an independent contractor whose skill and judgment the first defendant is entitled to rely upon.

(f) The first defendant constructed the foundations referred to in paragraph 14(a)(vi) in accordance with the plans and specification supplied to it [sic] by the second and third defendants.

(g) The first defendant constructed the sewer lines on East and West boundaries in accordance with the plans and specifications provided by the second and third defendants.

*****

18. The first defendant denies the amount of $2,780,952.49 is owing for rectification work.

PARTICULARS

(a) The amount is excessive.

(b) The work done or a substantial part of it falls outside the scope of rectification work and so is not recoverable, further particulars will be provided in response to the "Scott Schedule".

19. The first defendant denies the amount of $575,682.55 is a fair and reasonable amount for fees to assess the extent of the indemnity claim.

PARTICULARS

(a) The amount is excessive.

(b) The work done or a substantial part of it falls outside the scope of rectification work and so is not recoverable, and as a result the fees sought to be recovered also relate to work not within the scope of the recoverable rectification works."

28 The plaintiff has neither made nor foreshadowed any application pursuant to UCPR 14.28(1).

29 The cases are principally concerned with the dismissal of proceedings in circumstances where a plaintiff does not prosecute them with due despatch. Delay is said to be the threshold circumstance that enlivens the power, although the significance of delay is to be considered in the particular circumstances of the case involved. Some English authorities dealing with the power to dismiss an action for want of prosecution have suggested that the power should be exercised only where a plaintiff's default has been intentional and contumelious or where there has been inordinate or inexcusable delay giving rise either to a substantial risk that a fair trial would not be possible or to a risk of serious prejudice to the defendant. In New South Wales this prescription has been rejected as unduly restricting the true scope of the power to strike out for want of prosecution: Stollznow v Calvert [1980] 2 NSWLR 749; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274.

30 The latter case was one of multiple failures to comply with directions. It held that the English authorities relating to the exercise of a discretion to dismiss proceedings for default do not form part of the law of New South Wales so far as they restrict the exercise of the discretion.

31 The plaintiff's present application is informed by the Civil Procedure Act 2005 and in particular the following sections:

"56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4) ...

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

59 Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

61 Directions as to practice and procedure generally

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2) In particular, the court may, by order, do any one or more of the following:

(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following:

(a)...

(c) it may strike out any defence filed by a defendant, and give judgment accordingly,

(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court."

32 The issue distils to what is just in all of the circumstances. That requires in this case that a balance be struck between the competing interests of the plaintiff and the first defendant. The issue also needs now to be considered in the light of the recent decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. At [137] Heydon J commented as follows:

"Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce."

33 The commercial transaction that gave rise to these proceedings is now rather old. There is, for example, no party teetering precariously on the brink of financial collapse or mercantile oblivion if the proceedings are not brought to a conclusion very soon. On the other hand, the issues are clear and well defined, even if considerable controversy may attend the production of a final answer. For example, it seems tolerably clear that the Owners Corporation had significant concerns about the standard of workmanship that was involved in the building that it acquired. Even though minds may differ about the concerns that have been raised, the theoretical issues in the case are not particularly novel or complicated. If Mr Touma wished to contend that the building was constructed without defects, or without defects for which he was responsible or liable, these proceedings provide a perfect venue or vehicle in the context of which his contentions can be considered.

34 However, it is not appropriate to approach a dispute about who is or may be at fault for the alleged defects by attempting, or by remaining content, to frustrate the plaintiff's efforts to have the issues identified, isolated and finally determined. The plaintiff has made it clear in the course of these proceedings, as a stranger to the building contract between the Owners Corporation and Mr Touma, that it is dependent upon the production of a large amount of documents by the defendants, including Mr Touma, in order to attempt to understand and to make good its claim that the works for which it indemnified the Owners Corporation were defective and worthy of compensation. Mr Touma has managed so far, by a process of almost studied nonchalance, to avoid engaging in the litigious process in a proper way. He cannot be permitted to do so without some consequence. From the plaintiff's point of view that consequence should be the striking out of his defence. What follows thereafter remains to be seen. In my opinion, there are good grounds, in the interests of justice, for the granting of the relief that the plaintiff seeks.

35 This is a proper case where Mr Touma's defence should be struck out. He has not attended to his side of the litigation in a timely way and has disregarded his obligation to conform to directions that have been made. He cannot continue to change solicitors, or to seek adjournments on spurious grounds, in the hope that the inconvenience and disruption to his defence of the proceedings that is claimed to follow as a result becomes instead the problem of a plaintiff that is otherwise faultless and largely unarmed with any power to control what occurs.

Orders

36 I order that Mr Touma's defence filed on 29 January 2009 be struck out with costs. I will hear the parties on what further or other orders are required for the continuing conduct of the proceedings.

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LAST UPDATED:
13 January 2010