Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176

Supreme Court New South Wales

Medium Neutral Citation: Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176 Hearing dates: 3 March 2011 Decision date: 18 March 2011 Before: White J Decision: Refer to para 74 of judgment. Catchwords: PRACTICE AND PROCEDURE - application for extension of time to review Registrar's decision under r 49.20 Uniform Civil Procedure Rules - where Registrar refused application for extension of time for filing defence and cross-claim

PRACTICE AND PROCEDURE - application for review of Registrar's decision under r 49.20 Uniform Civil Procedure Rules - where Registrar refused application for extension of time for filing defence and cross-claim -whether the need for just determination of the issues requires leave be granted - where defendant guilty of exorbitant delay in filing defence and cross-claim and treated the orders of the court with disdain - defendant should prima facie not be given leave to file defence and cross claim - if leave not granted to file defence plaintiff prima facie entitled to such relief as it appears to be entitled to on statement of claim under r 16.10 Uniform Civil Procedure Rules - plaintiff's pleading deficient - risk that judgment in default of defence would not determine all the real issues - direct plaintiff to file and serve amended statement of claim and leave to defendant to file defence to amended statement of claim - leave to file cross-claim granted - cross-claim to be heard after determination of plaintiffs claim - defendant ordered to pay part of plaintiff's costs of proceedings on indemnity basis Legislation Cited: Conveyancing Act 1919 Real Property Act 1900 Civil Procedure Act 2005 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Hartigan v International Society for Krishna Consciousness Inc [1999] NSWSC 57 Tomko v Palasty (No. 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 Macquarie Bank Limited v National Mutual Life Association of Australia Limited (1996) 40 NSWLR 543 Category: Interlocutory applications Parties: Ronald Wayne Fenwick (Plaintiff) Wambo Coal Pty Ltd (Defendant) Representation: Counsel: M Heath (Plaintiff) A Spencer (Defendant) Solicitors: Sneddon & Partners (Plaintiff) Maddocks Lawyers (Defendant) File Number(s): 2009/291521