Caird Seven Pty Ltd v Attia Pty Ltd [2016] NSWSC 1088

Supreme Court New South Wales

Medium Neutral Citation: Caird Seven Pty Ltd v Attia Pty Ltd [2016] NSWSC 1088 Hearing dates: 29 July 2016 Date of orders: 29 July 2016 Decision date: 09 August 2016 Jurisdiction: Equity - Commercial List Before: Emmett AJA Decision: 1. The Notice of Motion filed on 25 July 2016 be dismissed so far as concerns prayers 1 and 2 and be otherwise stood over for further directions on 9 September 2016. 2. The defendants pay the plaintiff's costs of that motion to date. 3. The plaintiff file and serve no later than 12 August 2016 any written submissions that it wishes to make in support of any different order for costs in respect of that motion. 4. The defendants file and serve any written submissions in response no later than 26 August 2016. 5. Leave be granted to the defendants to file a cross-claim in the proceedings no later than 2 September 2016. 6. The defendants pay the plaintiff's costs of the motion filed on 14 July on an indemnity basis. 7. The proceedings be listed for directions generally on 9 September 2016. Catchwords: PROCEDURE – application to vacate consent orders for specific performance of contract – whether order was made by consent – whether justice would be better served by vacating the order – whether prima facie case for breach of an essential term of contract of sale – whether there was a serious issue to be tried – whether there were other equitable factors to decline vacating the consent orders Legislation Cited: Australian Consumer Law (NSW), ss 18, 237 Cases Cited: JAG Investments Pty Limited v Strati [1981] 2 NSWLR 600 Category: Procedural and other rulings Parties: Caird Seven Pty Ltd (Plaintiff) Mr Mina Attia (First Defendant) Shopsmart Pharmacy Franchising Pty Ltd (Second Defendant) Representation: Counsel: Mr PD Herzfeld (Plaintiff) Mr RC Gration (Defendant)