Daily Catch-Up Pty Ltd v Tynan Motors Pty Ltd

HAMILL J: The first and second defendants in these proceedings seek an order that the summons filed by the plaintiff on 4 January 2019 be dismissed. The case has an unfortunate procedural history and a background suggesting that many of the matters raised in the summons have previously been litigated.

The application concerns the proceedings commenced by the plaintiff, Daily Catch-Up Pty Limited, by summons filed on 4 January 2019. That summons purported to be an appeal or, perhaps, more correctly, an application for leave to appeal against an order made in the Local Court summarily dismissing civil proceedings brought by the plaintiff against the defendants. The grounds of appeal and the particulars of those grounds are set out in the summons as follows:

The order, against which the plaintiff sought to appeal, was made on 10 December 2018. It seems that the basis upon which the Magistrate made the order for summary dismissal was that the case that the plaintiff sought to present was unmeritorious, had no reasonable chance of success, disclosed no reasonable cause of action, had a tendency to cause embarrassment, hardship or delay and was an abuse of process:

To understand the decision of the Magistrate and the application now made to dismiss the summons, it is necessary to set out briefly the background of the litigation of the earlier proceedings. The earlier proceedings arose out of a cross claim made by the present plaintiff in proceedings numbered in the Local Court 2016/00252123. I will refer to those proceedings as “the earlier proceedings”.

The earlier proceedings concerned a dispute over the fitness of a car for its intended purpose. The present plaintiff entered into a contract to purchase the car. The dispute arose after it took delivery of the car. There appears to have been certain complications and factual disputes between the parties as to that issue. But, for today’s purposes, it is unnecessary to consider the dispute any further other than to say that the first defendant in the present proceedings, which is Tynan Motors, was not a party to the earlier proceedings, but that the second defendant in the present proceedings, FCA Australia, was the cross defendant.

At first blush, and, indeed, I think on closer examination, there are a number of common features between the dispute subject of the earlier proceedings and the present dispute. The earlier proceedings were subject to a deed of settlement signed in July 2018. The deed was signed on behalf of the present plaintiff by Mr M Zreiker. There may then have been a consent judgment on 12 July 2018 based around the content of that deed. In short, there was a judgment for the cross defendants and an order for costs in the sum of $12,500.

The present plaintiff then did two things. First, on 30 August 2018, he sought an order staying FCA from entering judgment pursuant to the deed. That application was dismissed on 4 September 2018 and the Magistrate made a number of orders including judgment for the present defendant and an order that the present plaintiff pay costs. Those orders were in accordance with the deed of settlement.

On 16 October 2018 the plaintiff commenced a new set of proceedings this time as the plaintiff (as opposed to the cross claimant) for a breach of contract arising from the sale or purchase of the same motor car which was the centre of the dispute litigated in the earlier proceedings, and the subject of the deed of settlement. As I understand it, the costs of the first proceedings have never been paid and there has been no appeal against the orders made by the Magistrate.

The defendant in the present proceedings has made a number of enquiries about the status of the plaintiff company and those are set out in correspondence which became Exhibit A this morning. Eventually, the plaintiff company was deregistered on 8 March 2019 and the principal of that company, Mr Zreiker, who was the signatory of the deed of settlement in the earlier proceedings, had indicated in a number of emails an intention to have the company reregistered. However, in essence, nothing has happened to have the company reregistered.

The question today, or at least the first question today, is whether I should, to quote Jordan CJ’s words, “do nothing”, or whether I should take the alternative approach and “do something”, namely, to dismiss the proceedings; United Service Insurance Co Ltd (In Liq) v Lang (1935) 35 SR (NSW) 487. The principles arising when a company like the present plaintiff essentially no longer exists in the course of litigation was set out by Slattery J in Amcus Pty Limited v Hurst Renewals No 2 [2010] NSWSC 239 at [17]-[20]:

Mr Elliott, who appears on behalf of both defendants, argues that the circumstances arising in the present case fall within those principles set out by Slattery J. In addition to the fact that the second set of proceedings appeared to be an attempt to re litigate matters which were subject to the first set of proceedings, it is also the case that since the matter has been brought to the Supreme Court by way of an appeal from the summary dismissal of the matter in the Local Court, there has been a fairly consistent failure to comply with court orders and case management requirements. The matter has been before the Registrar on a number of occasions. Orders were made for security for costs and, as I understand it, no attempt has been made to satisfy that order.

The matter then went before Harrison J at which time the matter could not proceed because the plaintiff as a company ceased to exist or had been deregistered. His Honour then made orders standing the matter over for six weeks to be listed before the Duty Judge today and, as I perceive it, nothing has been done.

The plaintiff, Mr Zreiker, has been called outside the court three times. There is in the end nothing to suggest that the plaintiff intends to take any steps to advance its summons purporting to appeal against the decision of the Magistrate to summarily dismiss the second set of proceedings.

Even if there were any steps, on the material before me which I accept is limited, any case that the plaintiff would seek to bring would appear to be without any merit whatsoever. Because it seeks to re litigate matters that are already subject to a deed of settlement in earlier proceedings, they also have the potential to embarrass the defendants.

The consequence of that procedural and factual history is that the submissions made by Mr Elliott should be accepted and the summons filed on 4 January 2019 seeking to appeal against the decision of the Magistrate will be dismissed.

In the event that the company, Daily Catch-Up Pty Limited (that is to say, the plaintiff) is reregistered it is to pay the costs of these proceedings.