Rubio v Trenzado [2013] NSWSC 161

Supreme Court New South Wales

Medium Neutral Citation: Rubio v Trenzado [2013] NSWSC 161 Hearing dates: 15/02/2013 Decision date: 15 February 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) The amended notice of motion of the first defendant filed 15 February 2013 be dismissed. (2) Order the plaintiff to pay the first defendant's costs of the motion on the ordinary basis. (3) Stand over the application for costs to be payable forthwith. (4) The notice of motion of the second defendant filed 17 December 2012 be dismissed (5) Order the plaintiff to pay the second defendant's costs of the motion on the ordinary basis. (6) Stand over the question as to whether those costs ought be payable forthwith. (7) Order the plaintiff to serve on the defendants on or before 4pm, 8 March 2013 the interrogatories which he wishes them to answer. (8) Order that the defendants notify the plaintiff whether they oppose answering any of the interrogatories by 4pm 22 March 2013. If the defendants do not oppose answering the plaintiff's interrogatories, I order that such answers be served by Friday 4pm, 19 April 2013. (9) If the defendants do oppose answering interrogatories, I order that the plaintiff, should it wish to administer interrogatories, file and serve a notice of motion and all affidavits in support by 4pm, 5 April 2013. (10) Order the defendants to file all evidence upon which they rely on or before 4pm 19 April 2013. (11) Stand the proceedings over for further directions before me and the hearing of any motion to 9.30am on Friday 3 May 2013. Catchwords: SUMMARY DISMISSAL - hearing a motion for a summary judgment - consequence of a denial of a hearing on the merits before a Court - whether in interests of justice to dismiss proceedings. COSTS - application for indemnity costs on the grounds of serial non-compliance of Court orders - a successful contest of a motion for summary judgment is not unreasonable conduct such as to warrant indemnity costs. Legislation Cited: Civil Procedure Act 2005 Uniform Procedure Rules 2005 Category: Procedural and other rulings Parties: F Rubio (P) W Trenzado (D1) Aquitaine Constructions Pty Ltd (D2) Representation: Counsel: H Marshall SC / Dr S thonrton (P) C McDonald (D1) N Polin (D2) File Number(s): 2011/00355463