Cosmos E-C Commerce Pty. Ltd. v. Sue Bidwell & Associates Pty. Ltd. [2004] NSWCA 261

New South Wales Court of Appeal

CITATION : Cosmos E-C Commerce Pty. Ltd. v. Sue Bidwell & Associates Pty. Ltd. [2004] NSWCA 261 revised - 30/07/2004 HEARING DATE(S) : 28 July 2004 JUDGMENT DATE : 28 July 2004

JUDGMENT OF : Hodgson JA at 1 DECISION : 1. Leave granted to the claimant to apply out of time for leave to appeal from the orders made by Judge Rolfe on 11 June 2004. 2. Stayed until the hearing of the applications for leave to appeal the orders made by Acting Judge Cooper on 14 May 2004 and Judge Rolfe on 11 June 2004. 3. Ordered that the claimant to pay the opponent's costs of this application, and also to pay all costs thrown away by reason of the vacation of the hearing on 30 July 2004. 4. Ordered that the claimant provide security for those costs orders in the sum of $10,000. It is to be paid by the payment of $10,000 into an account in the names of the solicitors for the two parties. 5. At this stage leave is not granted for these costs orders to be enforced prior to the conclusion of the proceedings. An application for that leave can be made to the Court of Appeal when the application for leave is heard. The security ordered will stand as security for those particular costs if they are permitted to be enforced prior to the conclusion of the proceedings, or for any balance of costs that may exist at the end of the proceedings in favour of the plaintiff. 6. The stays that have been ordered are conditional on that amount of $10,000 being paid into such an account at or before 12 noon tomorrow. 7. Directed that the claimant proceed with expedition in bringing about the hearing of the leave applications.

CATCHWORDS : PROCEDURE - Summary disposal - Striking out defences - Whether denial of contract and performance is impermissible "pleading the general issue" - Whether finding contrary to defendant's affidavit should be made without cross-examination on summary judgment application - Whether and to what extent determination of terms of contract can be addressed at hearing as to damages after judgment for plaintiff given - Whether cross-defendants bound by determination of damages in hearing between plaintiff and defendant - Whether stay of damages hearing should be granted. PARTIES : Cosmos E-C Commerce Pty. Ltd. - claimant Sue Bidwell & Associates Pty. Ltd. - opponent FILE NUMBER(S) : CA 40379/04 COUNSEL : Mr. N. Cotman SC with Mr. M. Cohen for claimant Miss J. Pentelow for opponent SOLICITORS : Watson Mangioni, Sydney for claimant Muggletons, Stanmore for opponent