Reliance Financial Services NSW Pty Ltd v Francesco Criniti & ors [2008] NSWSC 1397

Reliance Financial Services NSW Pty Ltd v Francesco Criniti & ors [2008] NSWSC 1397

The hearing date was vacated because the plaintiff's mistaken belief about the date led to the unavailability of its preferred counsel, the application for summary disposal could be dispositive of the proceedings, the ability to be represented by chosen lawyers was an important consideration, and the defendants identified no real prejudice not curable by an order for costs thrown away.

Jurisdiction
Australia
Judgment Date
12 December 2008
Procedural Posture
Procedural Application to Vacate and Adjourn a Hearing Date / Interlocutory Application Concerning the Hearing Date for the Defendants' Notice of Motion for Summary Dismissal or Striking Out of the Proceedings
Outcome
Hearing date adjourned; fixture for 15 December 2008 vacated and motion refixed for 17 February 2009.
Legal Topics
['adjournment of Hearing Date' 'unavailability of Preferred Counsel' 'judicial Discretion in Case Management' 'costs Thrown Away']
['civil Procedure'] ['adjournment of Hearing Date' 'unavailability of Preferred Counsel' 'judicial Discretion in Case Management' 'costs Thrown Away']

Case Brief

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Procedural Posture

Procedural Application to Vacate and Adjourn a Hearing Date / Interlocutory Application Concerning the Hearing Date for the Defendants' Notice of Motion for Summary Dismissal or Striking Out of the Proceedings

Legal Issues

  1. 1 ["Whether the hearing of the defendants' notice of motion listed for 15 December 2008 should be vacated because the plaintiff's preferred counsel was unavailable due to a mistaken belief about the hearing date." 'Whether the absence of real prejudice to the defendants, apart from disappointment of expectations and arrangements, justified an adjournment on terms as to costs.']

Ratio Decidendi

The hearing date was vacated because the plaintiff's mistaken belief about the date led to the unavailability of its preferred counsel, the application for summary disposal could be dispositive of the proceedings, the ability to be represented by chosen lawyers was an important consideration, and the defendants identified no real prejudice not curable by an order for costs thrown away.

Court Disposition

Hearing date adjourned; fixture for 15 December 2008 vacated and motion refixed for 17 February 2009.

Orders

  • ["The fixture of the defendants' notice of motion for hearing on 15 December 2008 be vacated." "The plaintiff pay the defendants' costs occasioned by the vacation of the hearing date." 'The motion be fixed for hearing before Brereton J on Tuesday, 17 February 2009 at 10am.' 'No order as to the costs of the motion...