Moses v Ratner (No 2) [2021] NSWSC 960

Moses v Ratner (No 2) [2021] NSWSC 960

Although the defendants had repeatedly failed to comply with court orders and caused substantial delay, the Court was not satisfied that justice required striking out the defence under r 12.7. The delays were primarily attributed to the defendants' solicitors rather than the defendants personally; the defendants had ultimately done what was required; most evidence had been served; the issues were limited; the matter could now be case-managed expeditiously; and r 12.7 should not be used as punishment. Because the defence was not struck out, the application for default judgment fell away, and the Court was not in a position to determine or dismiss the defendants' motion concerning the...

Jurisdiction
Australia
Judgment Date
26 July 2021
Procedural Posture
Common Law Civil Procedure Motion Concerning Striking Out a Defence, Default Judgment, and Related Notices of Motion / Plaintiff's Amended Notice of Motion Filed on 7 June 2021 Heard and Determined
Outcome
Plaintiff's notice of motion dismissed; defendants ordered to pay the costs of the motion.
Legal Topics
['pleadings' 'striking Out Defence for Want of Due Dispatch' 'abuse of Process' 'default Judgment' 'notice to Admit Facts' 'case Management' 'party/party Costs']
['civil Procedure' 'costs'] ['pleadings' 'striking Out Defence for Want of Due Dispatch' 'abuse of Process' 'default Judgment' 'notice to Admit Facts' 'case Management' 'party/party Costs']

Case Brief

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Procedural Posture

Common Law Civil Procedure Motion Concerning Striking Out a Defence, Default Judgment, and Related Notices of Motion / Plaintiff's Amended Notice of Motion Filed on 7 June 2021 Heard and Determined

Legal Issues

  1. 1 ["Whether the defendants' defence should be struck out for want of due dispatch under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether, if the defence were struck out, the plaintiff should obtain judgment in default.' "Whether the defendants' notice of motion dated 9 April 2021 should be dismissed or permanently stayed." "Whether costs should follow the event or the defendants should pay the plaintiff's costs despite the plaintiff's motion being dismissed."]

Ratio Decidendi

Although the defendants had repeatedly failed to comply with court orders and caused substantial delay, the Court was not satisfied that justice required striking out the defence under r 12.7. The delays were primarily attributed to the defendants' solicitors rather than the defendants personally; the defendants had ultimately done what was required; most evidence had been served; the issues were limited; the matter could now be case-managed expeditiously; and r 12.7 should not be used as punishment. Because the defence was not struck out, the application for default judgment fell away, and the Court was not in a position to determine or dismiss the defendants' motion concerning the...

Court Disposition

Plaintiff's notice of motion dismissed; defendants ordered to pay the costs of the motion.

Orders

  • ["The plaintiff's notice of motion is dismissed." 'The defendants are to pay the costs of the motion.' "The first and second defendants pay the plaintiff's costs of the motion."]