NSW Caselaw
New South Wales Supreme Court
CITATION : Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386
HEARING DATE(S) : 18 November 2008
JUDGMENT DATE : 23 December 2008
JURISDICTION : Common Law
JUDGMENT OF : Rothman J
(i) Leave to appeal be granted;
(ii) The judgment of his Honour Magistrate Heilpern, of 22 July 2008, in matter number 10799/2007, Hans Pet Constructions Pty Ltd v Kay Isabel Cassar & Anor, striking out the defence in those proceedings and granting default judgment, be quashed;
(iii) The Local Court deal with the application for a variation of the timetable in the aforementioned matter in accordance with law; DECISION : (iv) The defendant shall pay the plaintiffs' costs of and incidental to these proceedings, as agreed or assessed;
(v) To the extent otherwise entitled, the defendant be granted an indemnity certificate pursuant to the terms of s 6 of the Suitors' Fund Act 1951;
(vi) The parties be granted liberty to apply for any further order consequential upon the foregoing reasons for judgment, including any different order as to costs, by application to my Associate by 4 February 2009.
CATCHWORDS : PRACTICE AND PROCEDURE – appeal from judgment striking out defence – exercise of discretion not to be subject to interference unless error of principle – failure of party to comply with directions as to filing evidence did not allow striking out of defence – appeal allowed
Civil Procedure Act 2005 LEGISLATION CITED : Local Courts Act 1982 Suitors' Fund Act 1951
CATEGORY : Principal judgment
Comet Building Services Pty Ltd v Hy-Tec Industries Pty Ltd [2008] NSWSC 11 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Haset Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 CASES CITED : House v R [1936] HCA 40; (1936) 55 CLR 499 Maxwell v Keun [1928] 1 KB 645 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Sullivan v Department of Transport (1978) 20 ALR 323
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