Airberg Pty Ltd & Ors v Cut Price Deli Pty Ltd & Ors [1997] FCA 929

Airberg Pty Ltd & Ors v Cut Price Deli Pty Ltd & Ors [1997] FCA 929

Given the applicants' explanations for their procedural default, the lack of personal notice, the absence of substantial prejudice to the respondents, and the significant effort already expended, it would be unjust to permanently bar the applicants from pursuing their claim. The order dismissing their application was therefore set aside, subject to payment of the respondent's expenses.

Parties
First Applicant: Airberg Pty Ltd (ACN 051 085 495); Second Applicant: Michael Douglas Faulkner; Third Applicant: Antoinetta Faulkner; First Respondents: Cut Price Deli Pty Ltd (ACN 000 917 475); and Cut Price Deli (Australia) Pty Limited (ACN 010 913 103); Second Respondent: Harry Malovany; Third Respondent: Enzo Sgambellone; Fourth Respondent: Frank Rechichi
Jurisdiction
Australia
Judgment Date
28 August 1997
Procedural Posture
Motion to Set Aside Order of Dismissal and Related Orders / Interlocutory
Outcome
Order dismissing application as against second respondent (Malovany) set aside; applicants to pay expenses of Malovany for summary dismissal motion and setting aside motion; third and fourth respondents' motion to set aside leave for proceeding against them dismissed.
Legal Topics
Default Orders, Setting Aside Dismissal, Particulars, Summary Judgment, Bankruptcy and Leave to Proceed
Civil Procedure Default Orders Setting Aside Dismissal Particulars Summary Judgment Bankruptcy and Leave to Proceed

Case Brief

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Parties

Airberg Pty Ltd (ACN 051 085 495)

First Applicant

Michael Douglas Faulkner

Second Applicant

Antoinetta Faulkner

Third Applicant

Cut Price Deli Pty Ltd (ACN 000 917 475); and Cut Price Deli (Australia) Pty Limited (ACN 010 913 103)

First Respondents

Harry Malovany

Second Respondent

Enzo Sgambellone

Third Respondent

Frank Rechichi

Fourth Respondent

Procedural Posture

Motion to Set Aside Order of Dismissal and Related Orders / Interlocutory

Legal Issues

  1. 1 Whether to set aside order dismissing the proceeding against the second respondent for failure to provide particulars
  2. 2 Whether to extend time for applicants to revive proceedings after dismissal
  3. 3 Whether to grant leave to continue against bankrupt respondents

Ratio Decidendi

Given the applicants' explanations for their procedural default, the lack of personal notice, the absence of substantial prejudice to the respondents, and the significant effort already expended, it would be unjust to permanently bar the applicants from pursuing their claim. The order dismissing their application was therefore set aside, subject to payment of the respondent's expenses.

Court Disposition

Order dismissing application as against second respondent (Malovany) set aside; applicants to pay expenses of Malovany for summary dismissal motion and setting aside motion; third and fourth respondents' motion to set aside leave for proceeding against them dismissed.

Orders

  • Order 1 made by the Court on 11 July 1996 be set aside.
  • Applicants pay Mr Malovany's expenses on his motion for summary dismissal and on the applicants' motion for the order setting aside.