Kyong Holdings Pty Ltd v Anqueline Pty Ltd [2010] NSWSC 588

Kyong Holdings Pty Ltd v Anqueline Pty Ltd [2010] NSWSC 588

The hearing date should not be vacated because the plaintiff/cross-defendants did not establish that any injustice would be suffered if the fixture remained. The further affidavit evidence could be prepared in time or had not been shown to justify vacation; the possible misleading and deceptive conduct claim was uncertain and could be pursued separately, with the defendants/cross-claimants undertaking not to rely on an Anshun estoppel; and the proposed claim against Smartsuper and Andrew Bloore could also be pursued separately. By contrast, vacating the hearing would cause injustice to the defendants/cross-claimants by delaying resolution of their long outstanding substantial cross-claim....

Jurisdiction
Australia
Judgment Date
02 June 2010
Procedural Posture
Equity Division Proceeding Involving Claim to Money Paid Into Court and Cross Claim for Damages for Breach of Implied Terms of Heads of Agreement / Interlocutory Notice of Motion by Plaintiff/cross Defendants to Vacate Hearing Date and Seek Leave to Join Additional Parties and Amend Pleadings
Outcome
Notice of motion for vacation of hearing date dismissed with costs; directions made for preparation for hearing.
Legal Topics
['vacation of Hearing Date' 'joinder of Parties' 'amendment of Pleadings' 'overriding Purpose' 'cross Claim for Breach of Implied Terms' 'good Faith and Best Endeavours' 'anshun Estoppel' 'misleading and Deceptive Conduct' 'negligent Advice']
['civil Procedure' 'equity' 'contract' 'property' 'superannuation'] ['vacation of Hearing Date' 'joinder of Parties' 'amendment of Pleadings' 'overriding Purpose' 'cross Claim for Breach of Implied Terms' 'good Faith and Best Endeavours' 'anshun Estoppel' 'misleading and Deceptive Conduct' 'negligent Advice']

Case Brief

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Procedural Posture

Equity Division Proceeding Involving Claim to Money Paid Into Court and Cross Claim for Damages for Breach of Implied Terms of Heads of Agreement / Interlocutory Notice of Motion by Plaintiff/cross Defendants to Vacate Hearing Date and Seek Leave to Join Additional Parties and Amend Pleadings

Legal Issues

  1. 1 ['Whether the hearing date of 11 June 2010 should be vacated to allow the plaintiff/cross-defendants to prepare further affidavit evidence.' 'Whether the possibility of a future misleading and deceptive conduct claim against the cross-claimants and CB Richard Ellis Pty Ltd justified vacating the hearing date and joining additional parties.' 'Whether a proposed claim against Smartsuper Pty Ltd and Andrew Bloore for negligent advice justified vacating the hearing date and joining additional parties.' "Whether, consistently with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), the proceeding should remain listed for hearing despite the plaintiff/cross-defendants' desire to have connected issues resolved in one proceeding."]

Ratio Decidendi

The hearing date should not be vacated because the plaintiff/cross-defendants did not establish that any injustice would be suffered if the fixture remained. The further affidavit evidence could be prepared in time or had not been shown to justify vacation; the possible misleading and deceptive conduct claim was uncertain and could be pursued separately, with the defendants/cross-claimants undertaking not to rely on an Anshun estoppel; and the proposed claim against Smartsuper and Andrew Bloore could also be pursued separately. By contrast, vacating the hearing would cause injustice to the defendants/cross-claimants by delaying resolution of their long outstanding substantial cross-claim....

Court Disposition

Notice of motion for vacation of hearing date dismissed with costs; directions made for preparation for hearing.

Orders

  • ['The motion brought by the plaintiff/cross-defendants by notice of motion filed on 31 May 2010 be dismissed.' "The plaintiff/cross-defendants pay the defendants'/cross-claimants' costs of the motion." 'Plaintiff/cross-defendants to serve evidence on cross-claim other than affidavit of Geoff Stein by 10am on 7 June...