Micallef v. Ofria [1999] NSWSC 113

Micallef v. Ofria [1999] NSWSC 113

The defendants' cross-claim was struck out because they had not prosecuted it with due despatch, had not complied with the consent order requiring an amended cross-claim, had not adequately explained their failure to provide additional information and documents, and no longer wished to rely on the filed cross-claim. The plaintiffs' application to strike out a defence was dismissed because no defence had been filed, and their application for judgment for damages to be assessed was dismissed as premature and inappropriate in proceedings seeking an account.

Jurisdiction
Australia
Judgment Date
23 February 1999
Procedural Posture
Equity Division Proceedings Instituted by Summons Concerning Commercial Premises and an Account / Plaintiffs' Notice of Motion Seeking to Strike Out the Defendants' Defence and Cross Claim and Seeking Judgment for Damages to Be Assessed
Outcome
The defendants' cross-claim filed on 23 December 1997 was struck out; the plaintiffs' applications to strike out the defence and for judgment for damages to be assessed were dismissed; costs of the notice of motion were made the plaintiffs' costs in the proceedings; the matter was stood over for directions.
Legal Topics
['tenants in Common' 'statutory Trustees for Sale' 'account' 'cross Claim' 'want of Prosecution' 'discovery' 'summary Judgment']
['equity' 'property Law' 'civil Procedure'] ['tenants in Common' 'statutory Trustees for Sale' 'account' 'cross Claim' 'want of Prosecution' 'discovery' 'summary Judgment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Division Proceedings Instituted by Summons Concerning Commercial Premises and an Account / Plaintiffs' Notice of Motion Seeking to Strike Out the Defendants' Defence and Cross Claim and Seeking Judgment for Damages to Be Assessed

Legal Issues

  1. 1 ["Whether the plaintiffs' application to strike out the defendants' defence should be entertained where no defence had been filed." "Whether the defendants' cross-claim filed on 23 December 1997 should be struck out for failure to prosecute with due despatch and failure to comply with procedural obligations." 'Whether the plaintiffs should obtain judgment for damages to be assessed in proceedings seeking the taking of an account.']

Ratio Decidendi

The defendants' cross-claim was struck out because they had not prosecuted it with due despatch, had not complied with the consent order requiring an amended cross-claim, had not adequately explained their failure to provide additional information and documents, and no longer wished to rely on the filed cross-claim. The plaintiffs' application to strike out a defence was dismissed because no defence had been filed, and their application for judgment for damages to be assessed was dismissed as premature and inappropriate in proceedings seeking an account.

Court Disposition

The defendants' cross-claim filed on 23 December 1997 was struck out; the plaintiffs' applications to strike out the defence and for judgment for damages to be assessed were dismissed; costs of the notice of motion were made the plaintiffs' costs in the proceedings; the matter was stood over for directions.

Orders

  • ['I order that the cross-claim filed by the defendants on 23 December 1997 be struck out.' 'I order that the application made by the plaintiffs in paragraphs 2 and 4 in the notice of motion filed by the plaintiffs on 23 February 1999 be dismissed.' "I order that the costs of the aforesaid notice of motion be the...