Bignell P/L v Edenden t/as Everdry Waterproofing [2003] NSWSC 77

Bignell P/L v Edenden t/as Everdry Waterproofing [2003] NSWSC 77

As Ison & Co Pty Limited was released from the Tribunal proceedings by agreement, proceedings cannot be maintained against it in this court and must be dismissed with costs. Other proposed grounds of appeal failed to raise any error of law within the jurisdiction of this court, except those limited to paragraph 7(e) of the amended notice of appeal, for which leave to amend is granted. The plaintiff is to pay the third defendant’s costs and the first and second defendants’ costs thrown away by amendments.

Parties
Plaintiff: A J Bignell Pty Ltd; First and Second Defendants: EG Edenden & P A Edenden t/as Everdry Waterproofing & Coatings; Third Defendant: Ison & Co Pty Limited; Fourth Defendant: Dunmore Sand & Soil Pty Limited; Fifth Defendant: Department of Fair Trading (Tribunal)
Jurisdiction
Australia
Judgment Date
24 February 2003
Procedural Posture
Appeal / Interlocutory Motion—strike Out and Leave to Amend Appeal Grounds
Outcome
Proceedings against third defendant dismissed; leave to amend notice of appeal granted only as to paragraph 7(e); costs orders as stated.
Legal Topics
Appeal—consumer, Trader and Tenancy Tribunal, Motion to Strike Out—supreme Court Rules, Amendment of Summons and Notice of Appeal
Administrative Law Civil Procedure Appeal—consumer, Trader and Tenancy Tribunal Motion to Strike Out—supreme Court Rules Amendment of Summons and Notice of Appeal

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 4 Authorities cited 4 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

A J Bignell Pty Ltd

Plaintiff

EG Edenden & P A Edenden t/as Everdry Waterproofing & Coatings

First and Second Defendants

Ison & Co Pty Limited

Third Defendant

Dunmore Sand & Soil Pty Limited

Fourth Defendant

Department of Fair Trading (Tribunal)

Fifth Defendant

Procedural Posture

Appeal / Interlocutory Motion—strike Out and Leave to Amend Appeal Grounds

Legal Issues

  1. 1 Whether proceedings should be dismissed against Ison & Co Pty Limited as third defendant after release from Tribunal proceedings
  2. 2 Whether leave should be granted to amend the notice of appeal, and on what grounds
  3. 3 Whether the grounds of appeal allege any error of law arising from the Tribunal's factual findings

Ratio Decidendi

As Ison & Co Pty Limited was released from the Tribunal proceedings by agreement, proceedings cannot be maintained against it in this court and must be dismissed with costs. Other proposed grounds of appeal failed to raise any error of law within the jurisdiction of this court, except those limited to paragraph 7(e) of the amended notice of appeal, for which leave to amend is granted. The plaintiff is to pay the third defendant’s costs and the first and second defendants’ costs thrown away by amendments.

Court Disposition

Proceedings against third defendant dismissed; leave to amend notice of appeal granted only as to paragraph 7(e); costs orders as stated.

Orders

  • Proceedings against Ison & Co Pty Limited dismissed; plaintiff to pay its costs of the motion and proceedings.
  • Leave granted to file amended notice of appeal restricted to paragraph 7(e) and amended summons.