Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd [2011] NSWSC 860

Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd [2011] NSWSC 860

The Plaintiffs failed to establish substantial breaches of court orders by the Defendants or demonstrate significant and irremediable prejudice. Any issues with late or incomplete discovery, data, or form of expert evidence can be remedied by specific orders, further discovery, or costs orders—not by the drastic measure of striking out the Cross-Claim or expert evidence. The appropriate case management approach, consistent with the overriding purpose in the Civil Procedure Act 2005 (NSW), is to dismiss the Plaintiffs' motion and direct further steps as necessary.

Parties
First Plaintiff/first Cross Defendant: Barescape Pty Ltd atf The Vs Family Trust; Second Plaintiff/second Cross Defendant: Anthony Ventura; Third Cross Defendant: Midfield Pty Ltd; First Defendant/cross Claimant: Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust; Matthew Gordon Higgins
Jurisdiction
Australia
Judgment Date
10 August 2011
Procedural Posture
Interlocutory Application / Motion to Strike Out Cross Claim or Expert Reports
Outcome
Motion dismissed
Legal Topics
Cross Claim, Expert Evidence, Discovery, Case Management
Civil Procedure Cross Claim Expert Evidence Discovery Case Management

Case Brief

Summary, issues, holding and outcome

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Parties

Barescape Pty Ltd atf The Vs Family Trust

First Plaintiff/first Cross Defendant

Anthony Ventura

Second Plaintiff/second Cross Defendant

Midfield Pty Ltd

Third Cross Defendant

Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust

First Defendant/cross Claimant

Matthew Gordon Higgins

Procedural Posture

Interlocutory Application / Motion to Strike Out Cross Claim or Expert Reports

Legal Issues

  1. 1 Should the Cross-Claim filed by the Defendants be struck out under s 61 of the Civil Procedure Act 2005 (NSW)?
  2. 2 Should the joint expert report(s) or expert evidence be struck out, disallowed, or rejected?
  3. 3 Have there been substantial breaches of court orders regarding discovery or expert evidence sufficient to justify striking out the Cross-Claim or expert reports?

Ratio Decidendi

The Plaintiffs failed to establish substantial breaches of court orders by the Defendants or demonstrate significant and irremediable prejudice. Any issues with late or incomplete discovery, data, or form of expert evidence can be remedied by specific orders, further discovery, or costs orders—not by the drastic measure of striking out the Cross-Claim or expert evidence. The appropriate case management approach, consistent with the overriding purpose in the Civil Procedure Act 2005 (NSW), is to dismiss the Plaintiffs' motion and direct further steps as necessary.

Court Disposition

Motion dismissed

Orders

  • The Plaintiffs' motion to strike out the Cross-Claim or alternatively strike out joint expert report(s) is dismissed.
  • The Court will hear the parties as to costs.