Zeaiter v Reliance Financial Services Pty Ltd [2007] NSWSC 929

New South Wales Supreme Court

CITATION : Zeaiter v Reliance Financial Services Pty Ltd [2007] NSWSC 929

HEARING DATE(S) : 25 May 2007 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 25 May 2007

DECISION : Order that plaintiff file a verified statement of the nature of its case in respects in which Statement of Claim deficient.

CATCHWORDS : COSTS – Interlocutory costs order – whether should be assessable forthwith - PROCEDURE – Pleading – application to strike out – late application – liberal view taken of pleading

(CTH) Trade Practices Act 1974 ss 51AA, 51AB, 51AC, 82, 87 (NSW) Contracts Review Act 1980 s 9 LEGISLATION CITED : (NSW) Fair Trading Act 1987 ss 68, 72. (NSW) Supreme Court Rules 1970 Pt 52A, r 9 (NSW) Uniform Civil Procedure Rules 2005 rr 15.10, 42.7

CASES CITED : Fiduciary Limited v Morningstar Research Pty Limited (2002) 55 NSWLR 1

Annette Theresa Zeaiter (plaintiff) PARTIES : Reliance Financial Services Pty Ltd (first defendant) Sam Peter Cassaniti (second defendant)

FILE NUMBER(S) : SC 3801/06

COUNSEL : Mr A F Fernon (plaintiff) Mr D A Allen (first defendant)

SOLICITORS : McCabe Terrill Lawyers Pty Ltd (plaintiff) Hancocks Solicitors (first defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON

Friday, 25 May 2007

3801/06 Annette Therese Zeaiter v Reliance Financial Services Pty Limited JUDGMENT (ex tempore) 1 HIS HONOUR: Before the Court are two Notices of Motion: the first originally was an application by the plaintiff for judgment but ultimately only a question of costs remains, and the second is an application by the defendant to strike out the Statement of Claim. First Motion 2 The first motion was filed by the plaintiff Annette Therese Zeaiter on 17 May 2007 and claims, in substance, orders striking out the defendant's Cross-Claim for want of prosecution, and default judgment on the Statement of Claim as a result of the defendant's failure to file a Defence. Since that motion was filed, the default has been cured by the filing of a Defence, and so far as the allegation of want of prosecution is concerned – which depended essentially on the defendant's failure to file further affidavits – the defendant/cross-claimant indicated that it intends to proceed to trial on the affidavits already filed in connection with the interlocutory application in the matter. In those circumstances, the plaintiff has pressed its motion only insofar as it seeks costs, seeking also an order that those costs may be assessed forthwith. The defendant does not seriously oppose an order that it pay the plaintiff's costs of the motion, but opposes the order for assessment forthwith. 3 The circumstances in which the Court might order that an interlocutory costs order be assessed forthwith are not strictly constrained. (NSW) Uniform Civil Procedure Rules 2005, r 42.7 provides as follows: (1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in sub-rule (1) do not become payable until the conclusion of the proceedings. 4 The facility for the Court to order otherwise, authorises an order having the effect of making an interlocutory costs order payable forthwith. Some of the relevant factors were identified in (former) Supreme Court Rules Part 52A, r 9, which provided as follows: 9 Order for costs—when payable