Levy v Bablis & United Producers and Associates Pty Ltd [2009] NSWSC 740

Levy v Bablis & United Producers and Associates Pty Ltd [2009] NSWSC 740

Leave to discontinue was refused because, at the hearing stage, discontinuance against the second defendant would deprive the first defendant of fair and reasonable advantages under the existing structure of the proceedings: the possible establishment of co-ordinate liability on a joint judgment without a cross-claim, and the availability of evidence from Mr O'Dowd about the investment and repayment. The second defendant's lack of readiness arose from its own failure to maintain adequate communications with its registered office and did not outweigh the disadvantage to the first defendant.

Jurisdiction
Australia
Judgment Date
29 July 2009
Procedural Posture
Equity Proceedings; Application for Leave for Discontinuance of Proceedings During Hearing / Hearing Commenced; Application Under R 12.1 of the Uniform Civil Procedure Rules 2005
Outcome
Relief requested under r 12.1 of the UCPR denied.
Legal Topics
['discontinuance of Proceedings' 'leave to Discontinue During Hearing' 'joint Judgment and Co Ordinate Liability' 'contribution' 'loss of Evidence' 'adjournment' 'registered Office Notice']
['equity' 'civil Procedure'] ['discontinuance of Proceedings' 'leave to Discontinue During Hearing' 'joint Judgment and Co Ordinate Liability' 'contribution' 'loss of Evidence' 'adjournment' 'registered Office Notice']

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Procedural Posture

Equity Proceedings; Application for Leave for Discontinuance of Proceedings During Hearing / Hearing Commenced; Application Under R 12.1 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave under r 12.1 of the Uniform Civil Procedure Rules 2005 to discontinue proceedings against the second defendant during the hearing, despite opposition by the first defendant.' 'Whether discontinuance would unfairly deprive the first defendant of the prospect of co-ordinate liability on a joint judgment and related contribution rights.' "Whether discontinuance would unfairly deprive the first defendant of evidence from the second defendant's principal, Mr O'Dowd."]

Ratio Decidendi

Leave to discontinue was refused because, at the hearing stage, discontinuance against the second defendant would deprive the first defendant of fair and reasonable advantages under the existing structure of the proceedings: the possible establishment of co-ordinate liability on a joint judgment without a cross-claim, and the availability of evidence from Mr O'Dowd about the investment and repayment. The second defendant's lack of readiness arose from its own failure to maintain adequate communications with its registered office and did not outweigh the disadvantage to the first defendant.

Court Disposition

Relief requested under r 12.1 of the UCPR denied.

Orders

  • ['The Court declined to grant leave for the plaintiff to discontinue the proceedings against the second defendant.']