Narui Gold Coast Pty Limited v Charles Harrison Pty Limited & Anor [2004] NSWSC 1181

Narui Gold Coast Pty Limited v Charles Harrison Pty Limited & Anor [2004] NSWSC 1181

The affidavit filed by Mr Bruce Dennis on 19 August 2004 complied with Order 3 because, on the evidence, it was filed consistently with his client's instructions and then present intentions that all evidence-in-chief had been filed; Bergin J was not satisfied that Mr Dennis did not believe what he swore or that he was dissembling. The self-executing dismissal was therefore not triggered and the motion for dismissal was dismissed.

Jurisdiction
Australia
Judgment Date
02 December 2004
Procedural Posture
Notice of Motion in Equity Division Cross Claim Proceedings Seeking Declaration or Dismissal for Non Compliance With Orders and Alternatively Dismissal as Abuse of Process / Hearing of Applicant's Motion After Orders Made by Acting Master Berecry on 22 July 2004
Outcome
Application refused; applicant's motion for dismissal dismissed; costs reserved.
Legal Topics
['summary Dismissal' 'guillotine Order' 'non Compliance With Court Orders' 'abuse of Process' 'affidavit Evidence' 'evidence in Chief' 'security for Costs']
['civil Procedure' 'equity' 'trade Practices' 'contract'] ['summary Dismissal' 'guillotine Order' 'non Compliance With Court Orders' 'abuse of Process' 'affidavit Evidence' 'evidence in Chief' 'security for Costs']

Case Brief

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Procedural Posture

Notice of Motion in Equity Division Cross Claim Proceedings Seeking Declaration or Dismissal for Non Compliance With Orders and Alternatively Dismissal as Abuse of Process / Hearing of Applicant's Motion After Orders Made by Acting Master Berecry on 22 July 2004

Legal Issues

  1. 1 ["Whether the affidavit filed by the cross-claimants' solicitor on 19 August 2004 complied with Order 3 made by Acting Master Berecry on 22 July 2004." 'Whether the Amended First Cross-Claim should be declared dismissed for non-compliance with the orders made on 22 July 2004.' 'Whether the Amended First Cross-Claim should alternatively be dismissed as an abuse of process.']

Ratio Decidendi

The affidavit filed by Mr Bruce Dennis on 19 August 2004 complied with Order 3 because, on the evidence, it was filed consistently with his client's instructions and then present intentions that all evidence-in-chief had been filed; Bergin J was not satisfied that Mr Dennis did not believe what he swore or that he was dissembling. The self-executing dismissal was therefore not triggered and the motion for dismissal was dismissed.

Court Disposition

Application refused; applicant's motion for dismissal dismissed; costs reserved.

Orders

  • ["The applicant's motion for dismissal is dismissed." 'The question of costs is reserved.' 'The cross-claimants are to file and serve an outline of evidence they will attempt to call from financiers by 10 December 2004.' 'The cross-defendant is to file and serve all evidence by 17 December 2004 except evidence in...