Associated Food v Baxter [1999] NSWSC 361

Associated Food v Baxter [1999] NSWSC 361

Leave to discontinue could be granted because, although there had been a hearing of the substantial dispute from 15 to 18 March 1999, no trial or hearing of the proceedings had begun against the Remaining Defendants; they were not contestants in that dispute and the plaintiffs had not embarked on proving an entitlement to relief against them.

Jurisdiction
Australia
Judgment Date
31 March 1999
Procedural Posture
Practice and Procedure Discontinuation Under Part 21 Rule 2 of the Rules of Supreme Court of New South Wales / Application by the Plaintiffs for Leave to Discontinue the Statement of Claim Against the Remaining Defendants After Settlement and Earlier Consent Orders Disposing of the Substantial Dispute and Part of the Cross Claim
Outcome
Leave to discontinue granted.
Legal Topics
['discontinuance' 'leave to Discontinue' 'commencement of Trial or Hearing' 'supreme Court Rules Part 21 Rule 2' 'cross Claim']
['civil Procedure'] ['discontinuance' 'leave to Discontinue' 'commencement of Trial or Hearing' 'supreme Court Rules Part 21 Rule 2' 'cross Claim']

Case Brief

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Procedural Posture

Practice and Procedure Discontinuation Under Part 21 Rule 2 of the Rules of Supreme Court of New South Wales / Application by the Plaintiffs for Leave to Discontinue the Statement of Claim Against the Remaining Defendants After Settlement and Earlier Consent Orders Disposing of the Substantial Dispute and Part of the Cross Claim

Legal Issues

  1. 1 ['Whether the Court could grant leave under Part 21 Rule 2 of the Supreme Court Rules for the plaintiffs to discontinue proceedings against the Remaining Defendants where a hearing had occurred against other parties but the Remaining Defendants had not appeared or contested that hearing.' 'Whether the trial or hearing of proceedings on the claim against the Remaining Defendants had begun for the purpose of Part 21 Rule 2.']

Ratio Decidendi

Leave to discontinue could be granted because, although there had been a hearing of the substantial dispute from 15 to 18 March 1999, no trial or hearing of the proceedings had begun against the Remaining Defendants; they were not contestants in that dispute and the plaintiffs had not embarked on proving an entitlement to relief against them.

Court Disposition

Leave to discontinue granted.

Orders

  • ['Leave granted to the plaintiffs to discontinue the whole of the proceedings in the statement of claim as against Messrs Campbell, Strong, Abroron, Advanced Biotechnology Corporation and the Official Trustee in Bankruptcy with no order as to costs.' "The proceedings on the cross-claim, so far as not already...