EVERGREEN TOURS PTY LTD v McLAREN [2010] NSWSC 1362

New South Wales Supreme Court

CITATION : EVERGREEN TOURS PTY LTD v McLAREN [2010] NSWSC 1362

HEARING DATE(S) : 22 November 2010

JUDGMENT DATE : 26 November 2010

JUDGMENT OF : Tamberlin AJ at 1

(1) The defendants be granted leave to withdraw their notice of submitting appearance filed on 14 September 2010. (2) The defendants file and serve a further notice of appearance by 3 December 2010. (3) The matter proceed by way of pleadings. (4) The plaintiffs file and serve a statement of claim by 17 December 2010. DECISION : (5) The defendants file and serve a defence by 4 February 2011. (6) The matter be listed for further directions before the Registrar on 11 February 2011. (7) The defendants pay the plaintiffs' costs of this application except in relation to the Notice to Produce. (8) The plaintiffs' pay the defendants costs of the Notice to Produce. (9) Liberty to apply on 2 days' notice.

CATCHWORDS : PROCEDURE – submitting appearance – whether discretion to grant leave to withdraw submitting appearance should be exercised – failure to obtain legal advice as to availability or strength of possible defences – appearance filed in circumstances of lack of funds and wish to avoid costs – whether defendant has an arguable defence – Uniform Civil Procedure Rules 2005 (NSW) rr 6.11(2), 12.5

LEGISLATION CITED : Uniform Civil Procedure Rules 2005, rr 6.9, 6.11, 12,5

CATEGORY : Procedural and other rulings

Chan v Zachariah (1984) 154 CLR 178 Firth v John Mowlem and Co Ltd [1978] 3 All ER 331 Garsec v His Majesty the Sultan of Brunei [2007] NSWSC 882 CASES CITED : General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Hilton v Gidley [2009] NSWSC 383 Sahab Holdings Pty Ltd v Registrar General [2009] NSWSC 1143 Somportex Ltd v Philadelphia Chewing Gum Corp [1968] 3 All ER 26