Strata Plan 47027 v McGinn [2018] NSWSC 1228

Supreme Court New South Wales

Medium Neutral Citation: Strata Plan 47027 v McGinn [2018] NSWSC 1228 Hearing dates: 12, 30 July 2018; 6 August 2018 Date of orders: 06 August 2018 Decision date: 06 August 2018 Jurisdiction: Equity Before: Parker J Decision: 1. The cross-claimant's notice of motion of 18 December 2017 is dismissed.

2. The Statement of Cross-Claim is struck out.

3. Order that the proceedings on the first cross-claim be transferred to the Common Law Division and direct that they be entered in the Defamation List.

4. Order that the cross-claimant pay the costs of the cross-claimant's motion dated 18 December 2017; the first, second and third cross-defendants' costs of their notice of motion dated 8 March 2018, and the fourth cross-defendant's costs of his notice of motion dated 26 February 2018. Catchwords: PRACTICE AND PROCEDURE – applications – default judgment – defamation – failure to file defence – failure to plead essential element in cause of action – application dismissed

PRACTICE AND PROCEDURE – applications – default judgment – discretionary considerations – applicant using default judgment as a tactic to pressure defendant in circumstances where it is known that proceedings will be defended

PRACTICE AND PROCEDURE – applications – strike out application – defamation – statement of cross-claim struck out for not pleading publication

PRACTICE AND PROCEDURE – jurisdiction – transfer of proceedings – transfer defamation cross-claim from Equity Division to Common Law Division

PRACTICE AND PROCEDURE – costs – special costs orders – indemnity costs – costs payable forthwith - order for indemnity costs to be payable forthwith refused where both applicant and cross-defendants responsible for bringing and prolonging hopeless application Legislation Cited: Supreme Court Act 1970 (NSW), s 54(1) Cases Cited: Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575 Texts Cited: Nil Category: Procedural and other rulings Parties: Sophia McGinn (Cross-Claimant/Defendant) Peter Clisdell Pty Ltd (First Cross-Defendant) Peter Miller (Second Cross-Defendant Marie Cregan (Third Cross-Defendant) James Moir (Fourth Cross-Defendant) Representation: Counsel: A Campbell (First and Third Cross-Defendants) DP Sibtain (Second Cross-Defendant) GR Rubagotti (Fourth Cross-Defendant)