Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539

Supreme Court New South Wales

Medium Neutral Citation: Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd [2011] NSWSC 539 Hearing dates: 3 June 2011 Decision date: 09 June 2011 Jurisdiction: Equity Division Before: Biscoe AJ Decision: (1) Defence to summary judgment claim struck out, judgment accordingly. (2) Appeal allowed against refusal of primary judge to grant summary judgment. (3) Appeal dismissed against primary judge refusal to allow plaintiff to re-open first judgment; (4) Other orders as set out at [ 56 ] of this judgment. Catchwords: SUMMARY JUDGMENT: - STRIKE OUT OF DEFENCE-set off defence to summary judgment claim struck out because of defendant's failure to comply with Court's directions and orders-appeal allowed from decision not to grant summary judgment in respect of part of plaintiff's claim where set-off was the only triable issue-set-off for damages for misleading or deceptive conduct or unconscionable conduct is not available against a claim for release of plaintiff's security deposit under a deed of options for lease which provided for return of the deposit if the lease does not proceed-the lease did not proceed. Legislation Cited: Uniform Civil Procedure Rules 2005 rr 13.1 49.41 Civil Procedure Act 2005 ss 61, 94 Cases Cited: Cookson Plibrico Pty Ltd v V & M Davidovic Pty Ltd [2010] NSWSC 1171 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Lean v Tumut River Orchard Management Ltd [2003] FCA 269 Re Dalco; Ex parte Dalco v Deputy Commissioner of Taxation (1986) 67 ALR 605 Smith (Administrator of Cosslett (Contractors) Ltd) v Bridgend County Borough Council [2002] 1 AC 336 Tony Lee Motors Ltd v M S MacDonald & Son (1974) Ltd [1981] 2 NZLR 281 Vesuvius Australia Pty Ltd (formerly known as Cookson Plibrico Pty Ltd) v V & M Davidovic Pty Ltd (No 2) [2011] NSWSC 48 Texts Cited: Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed (2002) LexisNexis Butterworths P W Young, C Croft, M Smith, On Equity (2009) Lawbook Co R Derham, The Law of Set-Off, 4th ed (2003) Oxford University Press Category: Principal judgment Parties: Vesuvius Australia Pty Ltd (Plaintiff/First Cross Defendant) V & M Davidovic Pty Ltd (First Defendant/Cross Claimant) Paul Armitage (Second Cross Defendant) Representation: Mr B Coles QC with Mr P Russell (Plaintiff/First Cross-Defendant) Mr M Davidovic in person (Director of the First Defendant/Cross Claimant) Pikes Lawyers (Plaintiff/First Cross-Defendant) File Number(s): 2010/0084991