CX & DN Holdings Pty Ltd v Frost [2010] NSWSC 1247

CX & DN Holdings Pty Ltd v Frost [2010] NSWSC 1247

The court held that the defence, as pleaded, was on its face tenable and could not be said to be bound to fail on the merits without evidence; thus, the requirements for striking out or entry of summary judgment were not met. Further, procedural requirements for striking out for want of prosecution had not been satisfied, as the defendant had not been given sufficient notice of such a motion.

Jurisdiction
Australia
Judgment Date
03 November 2010
Procedural Posture
Civil / Interlocutory Motion—application for Summary Judgment/strike Out of Defence and Cross Claim
Outcome
Plaintiff's notice of motion dismissed.
Legal Topics
['summary Judgment' 'strike Out of Pleadings' 'dismissal for Want of Prosecution' 'set Off' 'loan Agreement']
['civil Procedure'] ['summary Judgment' 'strike Out of Pleadings' 'dismissal for Want of Prosecution' 'set Off' 'loan Agreement']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil / Interlocutory Motion—application for Summary Judgment/strike Out of Defence and Cross Claim

Legal Issues

  1. 1 ['Whether the defence and cross-claim should be struck out under UCPR r 14.28 for disclosing no reasonable defence or for being an abuse of process' 'Whether summary judgment should be entered in favour of the plaintiff under UCPR r 13.1' 'Whether the defence and cross-claim should be struck out for want of prosecution under UCPR r 12.7']

Ratio Decidendi

The court held that the defence, as pleaded, was on its face tenable and could not be said to be bound to fail on the merits without evidence; thus, the requirements for striking out or entry of summary judgment were not met. Further, procedural requirements for striking out for want of prosecution had not been satisfied, as the defendant had not been given sufficient notice of such a motion.

Court Disposition

Plaintiff's notice of motion dismissed.

Orders

  • ["Plaintiff's notice of motion is dismissed." 'No order as to costs.']