Cosmos E-C Commerce Pty. Ltd. v. Sue Bidwell & Associates Pty. Ltd. [2004] NSWCA 261

Cosmos E-C Commerce Pty. Ltd. v. Sue Bidwell & Associates Pty. Ltd. [2004] NSWCA 261

There are arguable grounds for appeal due to the primary judge's refusal to permit proper defences and procedural shortcomings. A stay is warranted to prevent procedural complexity and wasted costs, but is conditional on the provision of security for costs by the claimant.

Jurisdiction
Australia
Judgment Date
28 July 2004
Procedural Posture
Application for Stay and Leave to Appeal / Court of Appeal Determination on Interlocutory Application
Outcome
Interlocutory orders granted: leave to apply out of time for leave to appeal; stays granted conditional on $10,000 security for costs; claimant to pay opponent's costs of application and costs thrown away; expedition ordered for hearing leave applications.
Legal Topics
['summary Disposal' 'striking Out Defences' 'stay of Damages Hearing' 'assessment of Damages' 'security for Costs']
['civil Procedure'] ['summary Disposal' 'striking Out Defences' 'stay of Damages Hearing' 'assessment of Damages' 'security for Costs']

Case Brief

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Procedural Posture

Application for Stay and Leave to Appeal / Court of Appeal Determination on Interlocutory Application

Legal Issues

  1. 1 ["Whether denial of contract and performance amounts to impermissible 'pleading the general issue'" "Whether findings contrary to defendant's affidavit should be made without cross-examination on summary judgment application" 'Whether determination of terms of contract can be addressed at hearing as to damages after judgment for plaintiff given' 'Whether cross-defendants are bound by determination of damages in a hearing between plaintiff and defendant' 'Whether stay of damages hearing should be granted']

Ratio Decidendi

There are arguable grounds for appeal due to the primary judge's refusal to permit proper defences and procedural shortcomings. A stay is warranted to prevent procedural complexity and wasted costs, but is conditional on the provision of security for costs by the claimant.

Court Disposition

Interlocutory orders granted: leave to apply out of time for leave to appeal; stays granted conditional on $10,000 security for costs; claimant to pay opponent's costs of application and costs thrown away; expedition ordered for hearing leave applications.

Orders

  • ['Leave granted to claimant to apply out of time for leave to appeal from orders made by Judge Rolfe on 11 June 2004.' 'Stayed until the hearing of applications for leave to appeal the orders made by Acting Judge Cooper on 14 May 2004 and Judge Rolfe on 11 June 2004.' "Claimant to pay opponent's costs of this...