Riva NSW Pty Ltd (ACN 113 881 815) v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers (ABN 27 526 211 743) [2014] NSWCA 454

Riva NSW Pty Ltd (ACN 113 881 815) v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers (ABN 27 526 211 743) [2014] NSWCA 454

The s 69 summons was dismissed because there was no possible basis on which the relief sought would be granted. The District Court's joinder and costs orders were within jurisdiction under the UCPR and s 98 of the Civil Procedure Act 2005 (NSW), the reasons of Curtis DCJ were not arguably deficient, the garnishee-related prayer would lead nowhere, the injunction was within jurisdiction and had been continued by consent, and the damages claim could not succeed in these proceedings. Any extension of time would be of no utility because the proceedings were doomed to failure, and adequate relief by an application to set aside orders made in absence was available under r 36.16(2)(b).

Jurisdiction
Australia
Judgment Date
29 October 2014
Procedural Posture
Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) Seeking Relief From District Court Orders, With a Notice of Motion for Summary Dismissal or Security for Costs / Court of Appeal Determination of the S 69 Summons and Dismissal Motion
Outcome
The summons was dismissed with costs; the notice of motion was otherwise dismissed; the respondents to the motion were ordered to pay the applicant's costs of that motion; costs were ordered on an indemnity basis.
Legal Topics
['prerogative Relief Under S 69' 'extension of Time' 'summary Dismissal' 'joinder of Parties for Costs' 'non Party Costs Orders' 'indemnity Costs' 'garnishee Order' 'injunction']
['civil Procedure' 'costs' 'judicial Review'] ['prerogative Relief Under S 69' 'extension of Time' 'summary Dismissal' 'joinder of Parties for Costs' 'non Party Costs Orders' 'indemnity Costs' 'garnishee Order' 'injunction']

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Procedural Posture

Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) Seeking Relief From District Court Orders, With a Notice of Motion for Summary Dismissal or Security for Costs / Court of Appeal Determination of the S 69 Summons and Dismissal Motion

Legal Issues

  1. 1 ['Whether the summons seeking relief under s 69 of the Supreme Court Act 1970 (NSW) should be dismissed because it was filed out of time and there was no prospect of an extension of time being granted' 'Whether the District Court orders of 20 December 2013 joining the Ferellas and ordering costs were within jurisdiction and adequately reasoned' 'Whether the injunction ordered on 11 April 2014 should be set aside' 'Whether damages, including damages under s 82 of the Trade Practices Act 1974 (Cth), could be awarded in the s 69 proceedings' 'Whether costs of the summons and dismissal motion should be ordered on an indemnity basis']

Ratio Decidendi

The s 69 summons was dismissed because there was no possible basis on which the relief sought would be granted. The District Court's joinder and costs orders were within jurisdiction under the UCPR and s 98 of the Civil Procedure Act 2005 (NSW), the reasons of Curtis DCJ were not arguably deficient, the garnishee-related prayer would lead nowhere, the injunction was within jurisdiction and had been continued by consent, and the damages claim could not succeed in these proceedings. Any extension of time would be of no utility because the proceedings were doomed to failure, and adequate relief by an application to set aside orders made in absence was available under r 36.16(2)(b).

Court Disposition

The summons was dismissed with costs; the notice of motion was otherwise dismissed; the respondents to the motion were ordered to pay the applicant's costs of that motion; costs were ordered on an indemnity basis.

Orders

  • ['Summons filed on 16 September 2014 be dismissed with costs.' 'Notice of motion filed on 14 October 2014 be otherwise dismissed.' "The respondents to the motion referred to in order (2) pay the applicant's costs of that motion." 'The costs of the proceedings referred to in orders (1) and (3) be paid on an indemnity...