Commonwealth Bank of Australia v iInvest Pty Ltd (in liq) and James Harker-Mortlock (No 3) [2016] NSWSC 1097

Commonwealth Bank of Australia v iInvest Pty Ltd (in liq) and James Harker-Mortlock (No 3) [2016] NSWSC 1097

Although the applicant had substantially caused the difficulty by failing to secure available representation earlier and the respondent would suffer delay and wasted costs, the matter was complex, the hearing would be inefficient and potentially unjust if the applicant proceeded unrepresented, and there was no material showing that a new legal team could realistically be prepared by 15 August 2016. The hearing date was therefore vacated with the applicant to pay the respondent's costs thrown away.

Jurisdiction
Australia
Judgment Date
10 August 2016
Procedural Posture
Notice of Motion Seeking to Vacate a Six Day Hearing in Possession Proceedings / Pre Hearing Procedural Application
Outcome
Application granted; hearing date vacated and matter relisted, with costs thrown away payable by the applicant.
Legal Topics
['vacation of Hearing Dates' 'adjournment' 'case Management' 'legal Representation' 'costs Thrown Away']
['practice and Procedure' 'civil Procedure'] ['vacation of Hearing Dates' 'adjournment' 'case Management' 'legal Representation' 'costs Thrown Away']

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

Notice of Motion Seeking to Vacate a Six Day Hearing in Possession Proceedings / Pre Hearing Procedural Application

Legal Issues

  1. 1 ['Whether the six-day hearing listed to commence on 15 August 2016 should be vacated because the applicant would otherwise be unrepresented.' "Whether the applicant's explanation for the late application and the prejudice to the respondent and other litigants justified refusing the vacation of the hearing date." 'Whether costs thrown away should be ordered if the hearing date was vacated.']

Ratio Decidendi

Although the applicant had substantially caused the difficulty by failing to secure available representation earlier and the respondent would suffer delay and wasted costs, the matter was complex, the hearing would be inefficient and potentially unjust if the applicant proceeded unrepresented, and there was no material showing that a new legal team could realistically be prepared by 15 August 2016. The hearing date was therefore vacated with the applicant to pay the respondent's costs thrown away.

Court Disposition

Application granted; hearing date vacated and matter relisted, with costs thrown away payable by the applicant.

Orders

  • ['Vacate the hearing date of 15 August 2016.' 'The matter is listed for hearing on 30 January 2017, with an estimate of six days plus.' "The applicant is to pay the respondent's costs thrown away as agreed or assessed."]