ANZ Banking Group Ltd v Capper & Ors [2002] NSWSC 759

ANZ Banking Group Ltd v Capper & Ors [2002] NSWSC 759

The notice of motion to strike out the statement of claim is dismissed because determining the factual matters raised would require conducting a mini trial within a trial, the defendants are not prejudiced by waiting to raise the issue in the trial proper, and entertaining the notice at this stage would be unfair and inconsistent with the orderly disposition of the proceedings.

Parties
Plaintiff: ANZ Banking Group Limited; Defendant: Mr Terry Capper; Defendant: Ms Robyn Grace Capper; Defendant: Mr Steven Nicol
Jurisdiction
Australia
Judgment Date
19 August 2002
Procedural Posture
Notice of Motion to Strike Out Statement of Claim / Interlocutory—application to Strike Out Statement of Claim Dismissed
Outcome
notice of motion dismissed; costs reserved
Legal Topics
Strike Out Application, Statement of Claim, Amendment, Costs
Civil Procedure Strike Out Application Statement of Claim Amendment Costs

Case Brief

Summary, issues, holding and outcome

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Parties

ANZ Banking Group Limited

Plaintiff

Mr Terry Capper

Defendant

Ms Robyn Grace Capper

Defendant

Mr Steven Nicol

Defendant

Procedural Posture

Notice of Motion to Strike Out Statement of Claim / Interlocutory—application to Strike Out Statement of Claim Dismissed

Legal Issues

  1. 1 Whether the statement of claim should be struck out due to an admitted error regarding the date of default
  2. 2 Whether the timing and context of the defendants' notice of motion justifies its dismissal

Ratio Decidendi

The notice of motion to strike out the statement of claim is dismissed because determining the factual matters raised would require conducting a mini trial within a trial, the defendants are not prejudiced by waiting to raise the issue in the trial proper, and entertaining the notice at this stage would be unfair and inconsistent with the orderly disposition of the proceedings.

Court Disposition

notice of motion dismissed; costs reserved

Orders

  • Notice of motion dismissed
  • Costs of the notice of motion reserved