HSBC Bank Australia Ltd v Chang [2009] NSWSC 69

HSBC Bank Australia Ltd v Chang [2009] NSWSC 69

The application to strike out the defence and dismiss the cross-claim is refused because much of the delay since 20 March 2007 was explicable by the defendant's ill health, absence, and bona fide attempts to appoint a tutor; the prejudice to the defendant if prevented from contesting is greater than the potential prejudice to the plaintiff; justice does not require dismissal or striking out at this stage.

Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Application / Interlocutory (strike Out Application Under R 12.7 Ucpr)
Outcome
Plaintiff's application dismissed.
Legal Topics
['strike Out Applications' 'want of Prosecution' 'delay in Litigation' 'appointment of Tutor' 'summary Dismissal']
['practice and Procedure'] ['strike Out Applications' 'want of Prosecution' 'delay in Litigation' 'appointment of Tutor' 'summary Dismissal']

Case Brief

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Procedural Posture

Application / Interlocutory (strike Out Application Under R 12.7 Ucpr)

Legal Issues

  1. 1 ["Whether the defendant's defence and cross-claim should be struck out or dismissed for want of prosecution under r 12.7 Uniform Civil Procedure Rules 2005" 'Whether justice requires dismissal or striking out given the procedural history and explanations for delay']

Ratio Decidendi

The application to strike out the defence and dismiss the cross-claim is refused because much of the delay since 20 March 2007 was explicable by the defendant's ill health, absence, and bona fide attempts to appoint a tutor; the prejudice to the defendant if prevented from contesting is greater than the potential prejudice to the plaintiff; justice does not require dismissal or striking out at this stage.

Court Disposition

Plaintiff's application dismissed.

Orders

  • ["The plaintiff's application is dismissed." 'The costs of the application are to be costs in the cause.' 'The proceedings will be listed for directions before Hislop J at 9:30am on 27 February 2009.']