Viavattene v Morton [2011] NSWSC 1682

Viavattene v Morton [2011] NSWSC 1682

Because matter number 152708 of 2011 had been dismissed and matter number 162069 of 2011 had been stayed until security for costs was provided, and because the appeal from those orders had not yet been determined and the orders had not otherwise been set aside or satisfied, the duty judge had no power to program a final hearing, grant expedition, entertain leave to amend, or make the evidentiary rulings sought. The orders pressed therefore had to be refused, with the motion stood over pending determination of the appeal and costs ordered against Mr and Mrs Viavattene.

Jurisdiction
Australia
Judgment Date
19 December 2011
Procedural Posture
Notice of Motion in Supreme Court Proceedings Concerning Access to Property, Injunctions, Damages and Costs / Procedural Ruling on Orders 6 to 16 of the Plaintiffs' Motion, After One Proceeding Had Been Dismissed and the Other Stayed, Pending Appeal
Outcome
The orders sought were refused, the motion was stood over pending determination of the appeal, and Mr and Mrs Viavattene were ordered to bear the defendants' costs of the hearing.
Legal Topics
['notice of Motion' 'stay of Proceedings' 'security for Costs' 'expedition' 'amended Statement of Claim' 'evidentiary Rulings' 'costs of Hearing']
['civil Procedure' 'property' 'costs'] ['notice of Motion' 'stay of Proceedings' 'security for Costs' 'expedition' 'amended Statement of Claim' 'evidentiary Rulings' 'costs of Hearing']

Case Brief

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Procedural Posture

Notice of Motion in Supreme Court Proceedings Concerning Access to Property, Injunctions, Damages and Costs / Procedural Ruling on Orders 6 to 16 of the Plaintiffs' Motion, After One Proceeding Had Been Dismissed and the Other Stayed, Pending Appeal

Legal Issues

  1. 1 ["Whether the duty judge could grant the orders pressed in the plaintiffs' motion while one proceeding stood dismissed and the other stayed pending compliance with security for costs or appeal." "Whether the plaintiffs' request to expedite the final hearing could be granted." "Whether the plaintiffs' application for leave to amend the statement of claim and proposed evidentiary rulings could be entertained at this stage." 'Whether correspondence to the plaintiffs could also be sent by email.' 'Whether costs should follow the event on the motion.']

Ratio Decidendi

Because matter number 152708 of 2011 had been dismissed and matter number 162069 of 2011 had been stayed until security for costs was provided, and because the appeal from those orders had not yet been determined and the orders had not otherwise been set aside or satisfied, the duty judge had no power to program a final hearing, grant expedition, entertain leave to amend, or make the evidentiary rulings sought. The orders pressed therefore had to be refused, with the motion stood over pending determination of the appeal and costs ordered against Mr and Mrs Viavattene.

Court Disposition

The orders sought were refused, the motion was stood over pending determination of the appeal, and Mr and Mrs Viavattene were ordered to bear the defendants' costs of the hearing.

Orders

  • ['The orders sought be refused.' 'The motion be stood over, pending determination of the appeal.' "Mr and Mrs Viavattene must bear the defendants' costs of the hearing, as agreed or assessed."]