Building Insurers' Guarantee Corporation v Touma [2010] NSWSC 4

New South Wales Supreme Court

CITATION : Building Insurers' Guarantee Corporation v Touma [2010] NSWSC 4

HEARING DATE(S) : 26 November 2009

JUDGMENT DATE : 13 January 2010

JUDGMENT OF : Harrison J

DECISION : Order that the first defendant's defence filed on 29 January 2009 be struck out with costs.

CATCHWORDS : PRACTICE AND PROCEDURE – UCPR 12.7(2) – application to strike out defence where not conducted with due despatch – where defendant has failed to attend to orders for discovery – where plaintiff a stranger to the commercial transaction between the defendant and a third party from which the litigation arises - where proceedings effectively stalled until discovery completed – defence struck out

Civil Liability Act 2002 Civil Procedure Act 2005 LEGISLATION CITED : Environmental Planning and Assessment Act 1979 Home Building Act 1989 Uniform Civil Procedure Rules

CATEGORY : Procedural and other rulings

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 CASES CITED : Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Stollznow v Calvert [1980] 2 NSWLR 749

Building Insurers' Guarantee Corporation (Plaintiff) Daniel Touma (First Defendant/Cross Claimant) PARTIES : Gold Holdings Pty Ltd (Second Defendant) Summing Up Services Pty Ltd t/as A L Wood Engineer (Third Defendant/First Cross Defendant) Burwood City Council (Second Cross Defendant)

FILE NUMBER(S) : SC 10984/2006

SOLICITORS : Mills Oakley Lawyers (Plaintiff) DLA Phillips Fox (Second Cross Defendant)