7Steel Building Solutions v Jason Wright [2011] NSWSC 779

7Steel Building Solutions v Jason Wright [2011] NSWSC 779

Although Mr Martin had trifled with the court's orders and failed to use anything approaching best endeavours to obtain the bank documents, the interests of justice did not yet require the serious step of striking out his defences and entering default judgment. The appropriate course was to give him one last...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 July 2011
Procedural Posture
Procedural and Other Rulings / Interlocutory Application by Second Further Amended Notice of Motion for Default Judgment Or, Alternatively, Further Discovery and Production of Documents
Outcome
Default judgment and striking out of defences refused; further discovery and bank document orders made; second further amended notice of motion otherwise dismissed except for costs; indemnity costs ordered against the second defendant.
Legal Topics
['default Judgment for Breach of Court Orders' 'discovery and Production of Documents' 'indemnity Costs' 'secret Commissions' 'barnes V Addy Liability']
['civil Procedure' 'equity' 'employment and Fiduciary Duties'] ['default Judgment for Breach of Court Orders' 'discovery and Production of Documents' 'indemnity Costs' 'secret Commissions' 'barnes V Addy Liability']

Source-derived case record

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Procedural Posture

Procedural and Other Rulings / Interlocutory Application by Second Further Amended Notice of Motion for Default Judgment Or, Alternatively, Further Discovery and Production of Documents

Legal Issues

  1. 1 ['Whether the second defendant was in breach of court orders made on 6 May and 27 May 2011 concerning discovery and use of best endeavours to obtain documents from Hang Seng Bank Limited, SKC and SKC International.' "Whether the second defendant's non-compliance justified striking out his defences and entering default judgment under s 61(3)(c) of the Civil Procedure Act 2005 (NSW)." 'Whether further orders should be made requiring affidavits, further discovery, and steps to obtain bank documents.' 'Whether the plaintiff should receive indemnity costs payable forthwith.']

Ratio Decidendi

Although Mr Martin had trifled with the court's orders and failed to use anything approaching best endeavours to obtain the bank documents, the interests of justice did not yet require the serious step of striking out his defences and entering default judgment. The appropriate course was to give him one last opportunity to comply by making further discovery and production orders and requiring follow-up with the bank, while ordering him to pay the plaintiff's costs of the motion on an indemnity basis because the application was necessitated by his unwillingness to comply and his inadequate explanation.

Court Disposition

Default judgment and striking out of defences refused; further discovery and bank document orders made; second further amended notice of motion otherwise dismissed except for costs; indemnity costs ordered against the second defendant.

Orders

  • ['Orders in accordance with prayers 4, 8 and 10 of the second further amended notice of motion filed on 10 June 2011.' "Mr Martin and his solicitors were ordered to send forthwith a letter to Hang Seng Bank by prepaid registered post, addressed to the account services department person who signed the bank's letter...