DONNA MARIA BATISTE v ICLE FINANCE CORP LTD [1993] NSWCA 21

DONNA MARIA BATISTE v ICLE FINANCE CORP LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, HANDLEY JA and Cripps JA 8 March 1993

[1993] NSWCA 21

Priestley JA. ICLE Finance Corp Ltd was the first defendant in proceedings brought against three defendants by Miss Batiste. Studdert J struck the first defendant out of those proceedings. Miss Batiste filed a notice of appeal against his order. The first defendant has filed a notice of motion to strike out the appeal as incompetent. Miss Batiste has filed a motion for extension of time to file a summons for leave to appeal against Studdert J's order, and also a draft summons seeking such leave. All matters have been heard together.

The first defendant's application to be struck out from the proceedings first came before Master Greenwood after an earlier history it is unnecessary to detail. He refused the application. On appeal, Studdert J upheld the first defendant's contention that there was no possibility of the plaintiff by estoppel maintaining her case against the first defendant.

We are of the view that it is arguable that on the materials before Studdert J he should not have struck out the first defendant from the proceedings in a summary way.

In our opinion the position is that the matter which the first defendant relied on in its application to be struck out from the proceedings was materialwhich, if summary proceedings had not been taken, would have constituted matter to be pleaded by way of defence and to which it would have been open then to Miss Batiste to reply by alleging an estoppel. Thus, for the first defendant to succeed in its application it had to show that there was no evidence on which the reply might succeed.

The events that took place in the course of the proceedings in the Federal Court before Davies J when he had before him an application and statement of claim raising much the same matters commenced by Miss Batiste against defendants including the first defendant, amounted to material which, as we understand it, was probably not taken into account by Studdert J and which had it been taken into account may have been seen by him as evidence upon which the estoppel claim by way of reply by Miss Batiste was arguable and could be sustained.