Sarina v Mackay [2020] NSWSC 427

Sarina v Mackay [2020] NSWSC 427

The matter was not ready to proceed on 24 April 2020 because the UCPR r 50.14 affidavit was due and had not been filed or served, and the plaintiff's submissions and chronology had not been filed in accordance with directions. Although the plaintiff's defaults were unexplained and a hearing date is not lightly vacated, the constellation of factors, including Mrs Perry's inability to continue acting, her personal circumstances, the hacking of her office computer, the termination and impending unavailability of trial counsel, and the need for directions if the appeal were to be pursued, made it necessary in the interests of justice to vacate the hearing date. The plaintiff was ordered to...

Jurisdiction
Australia
Judgment Date
22 April 2020
Procedural Posture
Appeal or Application for Leave to Appeal Pursuant to Ss 39 and 40 of the Local Court Act 2007 (nsw); Notice of Motion to Vacate Hearing Date / Application to Vacate Final Hearing Date
Outcome
Application granted; hearing date vacated; plaintiff ordered to pay defendant's costs of the motion and costs thrown away.
Legal Topics
['application to Vacate Hearing Date' 'adjournment' 'costs Thrown Away' 'appeal From Local Court']
['practice and Procedure' 'civil Procedure'] ['application to Vacate Hearing Date' 'adjournment' 'costs Thrown Away' 'appeal From Local Court']

Case Brief

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Procedural Posture

Appeal or Application for Leave to Appeal Pursuant to Ss 39 and 40 of the Local Court Act 2007 (nsw); Notice of Motion to Vacate Hearing Date / Application to Vacate Final Hearing Date

Legal Issues

  1. 1 ['Whether the hearing date of 24 April 2020 should be vacated where the plaintiff had not filed submissions, chronology or the affidavit required by UCPR r 50.14.' "Whether the plaintiff should pay the defendant's costs of the motion and costs thrown away by the vacation of the hearing date."]

Ratio Decidendi

The matter was not ready to proceed on 24 April 2020 because the UCPR r 50.14 affidavit was due and had not been filed or served, and the plaintiff's submissions and chronology had not been filed in accordance with directions. Although the plaintiff's defaults were unexplained and a hearing date is not lightly vacated, the constellation of factors, including Mrs Perry's inability to continue acting, her personal circumstances, the hacking of her office computer, the termination and impending unavailability of trial counsel, and the need for directions if the appeal were to be pursued, made it necessary in the interests of justice to vacate the hearing date. The plaintiff was ordered to...

Court Disposition

Application granted; hearing date vacated; plaintiff ordered to pay defendant's costs of the motion and costs thrown away.

Orders

  • ['Vacate the hearing date of 24 April 2020.' "Order the plaintiff to pay the defendant's costs of the plaintiff's notice of motion filed on 16 April 2020 and any costs thrown away by the vacation of the hearing date." 'List the matter for further directions before me at 9.15am on 29 April 2020.']