Gazzard v Hekeik [2021] NSWSC 1301

Supreme Court New South Wales

Medium Neutral Citation: Gazzard v Hekeik [2021] NSWSC 1301 Hearing dates: 6 October 2021 Date of orders: 13 October 2021 Decision date: 13 October 2021 Jurisdiction: Common Law Before: Hamill J (as Duty Judge) Decision: (1) The relief sought in the amended notice of motion is refused and the notice of motion is dismissed. (2) List the matter for hearing on 22 March 2022. (3) The defendants and cross-claimant are to file and serve any amended defence or amended cross-claim on or before 12 November 2021. (4) The defendants and cross-claimant are to file and serve any additional evidence (including evidence as to quantum and expert evidence) upon which they intend to rely on or before 12 November 2021. (5) The Plaintiff and cross-defendants are to file and serve any reply, and/or defence to the cross-claim, on or before 10 December 2021. (6) The Plaintiff and cross-defendants are to file and serve any evidence in reply (including expert evidence and evidence as to quantum) on or before 10 December 2021. (7) The matter is listed before the Registrar on 13 December 2021 for further directions including orders for the filing of any additional evidence, provision of court books, and filing of written submissions. (8) The costs of the notice of motion will be the costs in the cause. Catchwords: CIVIL LAW – interlocutory orders – application for summary judgment – application to dismiss or sever cross-claim – whether defendant's case untenable or destined to fail – loans between property developers – where debt unpaid – where allegation that lender unjustly enriched – where pleadings possibly deficient – where defendant asserts agreement was to repay debt at conclusion – whether relief sought in cross-claim relates to or connected with subject of the statement of claim – defence and cross-claim disclose triable issue – motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Collier v Lancer (No 2) [2013] NSWCA 186 Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Simmons v Henwood [2013] NSWCA 184 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 State of New South Wales v Williams [2014] NSWCA 177 Category: Procedural rulings Parties: Richard Warwick Gazzard (Plaintiff/ Second Cross-Defendant) Anthony Joseph Hekeik (First Defendant/ Cross-Claimant) Wormald Malanda Pty Limited ACN 603 797 491 (Second Defendant) Wormald Malanda Pty Limited ATF AJH & RJH Family Trust (Third Defendant) Wormald Malanda Pty Limited ATF Anthony Hekeik Trust (Fourth Defendant) Wormald Malanda Pty Limited ATF Raymond Hekeik Trust Claim (Fifth Defendant) Badajoz Property Pty Limited ACN 603 705 095 (First Cross-Defendant) Adrian Gazzard (Third Cross-Defendant) Representation: Counsel: B Levet (First Defendant/ Cross-Claimant)