McLeod v Munro & Anor (No 2) [2005] NSWCA 378

McLeod v Munro & Anor (No 2) [2005] NSWCA 378

Mr McLeod's obligation under cl 6 to pay $300,000 to Mr Munro on or before 30 June 2003 was not subject to any condition precedent in cls 3, 6, 9, 10 or 14. Combined with repeated failures to comply with directions to file evidence and the failure of the amended defences to disclose a triable issue, the District Court judge was entitled to strike out the defence under DCR Pt 9 r 17 and enter judgment. Non-joinder did not defeat the action or judgment, and the proposed appeal would fail in substance, so leave to appeal was refused.

Jurisdiction
Australia
Judgment Date
03 November 2005
Procedural Posture
Summons for Leave to Appeal From District Court Judgment / Court of Appeal Summons for Leave to Appeal Out of Time
Outcome
Time extended; summons for leave to appeal dismissed; claimant ordered to pay the opponents' costs of the summons.
Legal Topics
['district Court Pleading' 'summary Judgment' 'strike Out of Defence' 'leave to Amend Defence' 'non Joinder of Parties' 'conditions Precedent' 'departure in Pleading']
['civil Procedure' 'contract Law'] ['district Court Pleading' 'summary Judgment' 'strike Out of Defence' 'leave to Amend Defence' 'non Joinder of Parties' 'conditions Precedent' 'departure in Pleading']

Case Brief

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Procedural Posture

Summons for Leave to Appeal From District Court Judgment / Court of Appeal Summons for Leave to Appeal Out of Time

Legal Issues

  1. 1 ['Whether time for filing the summons for leave to appeal should be extended.' "Whether the District Court judge was entitled under DCR Pt 9 r 17 to strike out the claimant's defence." 'Whether leave to further amend the defence should have been refused.' 'Whether judgment could be entered for Mr Munro after the defence was struck out.' 'Whether alleged non-joinder of promisors or promisees defeated the judgment.' 'Whether DCR Pt 9 r 12(1) prevented amendments inconsistent with an earlier version of the pleading.']

Ratio Decidendi

Mr McLeod's obligation under cl 6 to pay $300,000 to Mr Munro on or before 30 June 2003 was not subject to any condition precedent in cls 3, 6, 9, 10 or 14. Combined with repeated failures to comply with directions to file evidence and the failure of the amended defences to disclose a triable issue, the District Court judge was entitled to strike out the defence under DCR Pt 9 r 17 and enter judgment. Non-joinder did not defeat the action or judgment, and the proposed appeal would fail in substance, so leave to appeal was refused.

Court Disposition

Time extended; summons for leave to appeal dismissed; claimant ordered to pay the opponents' costs of the summons.

Orders

  • ['Time for the filing of the summons for leave to appeal is extended to 20 January 2005.' 'Summons dismissed.' 'Claimant to pay the opponents costs of the summons.']