Alexander v Moss [1999] NSWCA 64

Alexander v Moss [1999] NSWCA 64

The order to strike out the claimant's action was inappropriate because at the time of the order, the claimant was not in default of any procedural requirements and the opponent was in default. Therefore, the striking out of the action was wrongly made and should be set aside.

Parties
Claimant: Geoffrey Tyler Alexander; Opponent: Darren Moss
Jurisdiction
Australia
Judgment Date
22 February 1999
Procedural Posture
Application for Leave to Appeal / Court of Appeal Judgment on Leave Application
Outcome
Leave to appeal granted; appeal to be allowed and orders below set aside.
Legal Topics
Application for Leave to Appeal, Strike Out of Proceeding, District Court Practice, Non Compliance With Court Directions
Civil Procedure Application for Leave to Appeal Strike Out of Proceeding District Court Practice Non Compliance With Court Directions

Case Brief

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Parties

Geoffrey Tyler Alexander

Claimant

Darren Moss

Opponent

Procedural Posture

Application for Leave to Appeal / Court of Appeal Judgment on Leave Application

Legal Issues

  1. 1 Whether the District Court erred in striking out the claimant's action for alleged procedural default
  2. 2 Whether the claimant was in default at the time the action was struck out
  3. 3 Whether the opponent's own default affected the appropriateness of the strike out

Ratio Decidendi

The order to strike out the claimant's action was inappropriate because at the time of the order, the claimant was not in default of any procedural requirements and the opponent was in default. Therefore, the striking out of the action was wrongly made and should be set aside.

Court Disposition

Leave to appeal granted; appeal to be allowed and orders below set aside.

Orders

  • Leave to appeal granted
  • Appeal allowed