Benn v Weber Bros Circus & Logistics Pty Ltd [2017] NSWDC 171

Benn v Weber Bros Circus & Logistics Pty Ltd [2017] NSWDC 171

The defendant had notice of the hearing but twice failed to appear, and the court could proceed under r 29.7 UCPR. The Defence was struck out because there was sufficient delay and want of due progress, but principally because it disclosed no proper defence, contained defective non-admissions and alternative denials, was not verified, and included filing details for another company. Summary judgment was entered, and on the plaintiff's evidence of the accident, scarring, psychological symptoms and out-of-pocket expenses, damages of $45,500 plus costs were awarded.

Jurisdiction
Australia
Judgment Date
15 June 2017
Procedural Posture
Civil Personal Injury Tort Proceedings for Damages / Application to Strike Out Defence and for Summary Judgment; Assessment of Damages in the Defendant's Absence
Outcome
Defence struck out; proceedings continued by assessment of damages; judgment for the plaintiff for $45,500; defendant to pay plaintiff's costs.
Legal Topics
['defendant Fails to Appear' 'summary Judgment' 'striking Out Defence' 'want of Due Progress' 'defective Pleading' 'failure to Verify Defence' 'assessment of Damages' 'costs']
['tort' 'personal Injury' 'civil Procedure'] ['defendant Fails to Appear' 'summary Judgment' 'striking Out Defence' 'want of Due Progress' 'defective Pleading' 'failure to Verify Defence' 'assessment of Damages' 'costs']

Case Brief

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Procedural Posture

Civil Personal Injury Tort Proceedings for Damages / Application to Strike Out Defence and for Summary Judgment; Assessment of Damages in the Defendant's Absence

Legal Issues

  1. 1 ['Whether the hearing could proceed in the absence of the defendant after notice of the hearing had been given.' 'Whether the Defence should be struck out for want of due progress, failure to disclose a proper defence, failure to verify the Defence, and references to another corporation.' 'Whether summary judgment should be entered and damages assessed for the plaintiff.' 'What damages and costs should be awarded to the plaintiff.']

Ratio Decidendi

The defendant had notice of the hearing but twice failed to appear, and the court could proceed under r 29.7 UCPR. The Defence was struck out because there was sufficient delay and want of due progress, but principally because it disclosed no proper defence, contained defective non-admissions and alternative denials, was not verified, and included filing details for another company. Summary judgment was entered, and on the plaintiff's evidence of the accident, scarring, psychological symptoms and out-of-pocket expenses, damages of $45,500 plus costs were awarded.

Court Disposition

Defence struck out; proceedings continued by assessment of damages; judgment for the plaintiff for $45,500; defendant to pay plaintiff's costs.

Orders

  • ['Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D at 11:05am – no appearance.' 'Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D a second time at 12:25pm – no appearance.' 'On the application of the plaintiff, the Defence is struck out pursuant to rr 12.7 and...