In the matter of Green Alliance Pty Limited (receiver and manager appointed) [2012] NSWSC 1224

In the matter of Green Alliance Pty Limited (receiver and manager appointed) [2012] NSWSC 1224

Green Alliance had no real prospect of successfully defending the proceedings on the Defence as pleaded and the evidence relied on. The alleged agreement with Cold Water Creek did not plead or establish a release of Green Alliance from its Lease obligations, and the estoppel and waiver defences lacked specific pleaded representations, reliance and detriment. The further arguments advanced orally were not pleaded and were not supported by evidence. Given the age of the proceedings, the time since the summary judgment application was filed, the absence of any attempt to amend, and the likely prejudice and delay to MDM, leave to amend was refused. Summary judgment on liability was therefore...

Jurisdiction
Australia
Judgment Date
30 August 2012
Procedural Posture
Interlocutory Application for Strike Out of Defence and Summary Judgment / Application by Plaintiff Filed 4 July 2012 Heard on 30 August 2012; Ex Tempore Judgment
Outcome
Third Defendant's Defence struck out; judgment for Plaintiff with damages to be assessed; matter referred to an Associate Justice for determination of damages; Third Defendant ordered to pay Plaintiff's costs of the summary judgment application forthwith as agreed or assessed.
Legal Topics
['summary Disposal' 'strike Out of Defence' 'no Real Prospect of Defence' 'lease Obligations' 'estoppel' 'waiver']
['practice and Procedure' 'corporations' 'property and Leasing'] ['summary Disposal' 'strike Out of Defence' 'no Real Prospect of Defence' 'lease Obligations' 'estoppel' 'waiver']

Case Brief

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Procedural Posture

Interlocutory Application for Strike Out of Defence and Summary Judgment / Application by Plaintiff Filed 4 July 2012 Heard on 30 August 2012; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Third Defendant's Defence should be struck out because it disclosed no reasonable defence or had a tendency to cause prejudice, embarrassment or delay." 'Whether summary judgment should be entered for the Plaintiff under UCPR r 13.1 with damages to be assessed.' "Whether the pleaded agreement involving a third party, estoppel or waiver gave Green Alliance a real prospect of defending the Plaintiff's claim." 'Whether Green Alliance should be granted leave to amend its Defence.']

Ratio Decidendi

Green Alliance had no real prospect of successfully defending the proceedings on the Defence as pleaded and the evidence relied on. The alleged agreement with Cold Water Creek did not plead or establish a release of Green Alliance from its Lease obligations, and the estoppel and waiver defences lacked specific pleaded representations, reliance and detriment. The further arguments advanced orally were not pleaded and were not supported by evidence. Given the age of the proceedings, the time since the summary judgment application was filed, the absence of any attempt to amend, and the likely prejudice and delay to MDM, leave to amend was refused. Summary judgment on liability was therefore...

Court Disposition

Third Defendant's Defence struck out; judgment for Plaintiff with damages to be assessed; matter referred to an Associate Justice for determination of damages; Third Defendant ordered to pay Plaintiff's costs of the summary judgment application forthwith as agreed or assessed.

Orders

  • ['Pursuant to UCPR r 13, the Defence filed by the Third Defendant be struck out and there be judgment for the Plaintiff with damages to be assessed.' 'The matter is referred to an Associate Justice for the determination of damages.' "The Third Defendant pay the Plaintiff's costs of and incidental to the application...