MORRIS v. THOMAS [1993] NSWLEC 177 (1 November 1993) [1993] NSWLEC 2

MORRIS v. THOMAS [1993] NSWLEC 177 (1 November 1993) [1993] NSWLEC 2

Because Supreme Court Rules Pt 52 r 59(8) expressly empowered the Court to set aside the Certificate of Taxation issued under Pt 52 r 50A(7), the Applicant was not required to commence separate proceedings and could seek that relief by Notice of Motion in the existing proceedings. The Respondent's procedural objection was therefore overruled, but final relief could not be determined until the Respondent had an opportunity to adduce evidence.

Jurisdiction
Australia
Judgment Date
27 October 1993
Procedural Posture
Notice of Motion in Proceedings Involving an Application and Cross Application Under the Encroachment of Buildings Act 1922 / Hearing of the Applicant's Notice of Motion Seeking to Set Aside a Certificate of Taxation and Related Relief
Outcome
Respondent's objection to the use of Notice of Motion overruled; proceedings adjourned for the Respondent to file evidence.
Legal Topics
['certificate of Taxation' 'notice of Motion' 'encroachment of Buildings' 'taxation of Costs' 'enforcement of Court Orders']
['civil Procedure' 'costs' 'property Law'] ['certificate of Taxation' 'notice of Motion' 'encroachment of Buildings' 'taxation of Costs' 'enforcement of Court Orders']

Case Brief

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Procedural Posture

Notice of Motion in Proceedings Involving an Application and Cross Application Under the Encroachment of Buildings Act 1922 / Hearing of the Applicant's Notice of Motion Seeking to Set Aside a Certificate of Taxation and Related Relief

Legal Issues

  1. 1 ['Whether the Applicant could seek to set aside the Certificate of Taxation by Notice of Motion in the existing proceedings rather than by separate proceedings.' 'Whether the Court had power under Supreme Court Rules Pt 52 r 59(8) to set aside a Certificate of Taxation issued under Supreme Court Rules Pt 52 r 50A(7).' 'Whether any alleged compromise or binding agreement as to costs made it appropriate to set aside the Certificate of Taxation.' 'Whether any terms concerning interest should be imposed if the Certificate of Taxation were set aside.']

Ratio Decidendi

Because Supreme Court Rules Pt 52 r 59(8) expressly empowered the Court to set aside the Certificate of Taxation issued under Pt 52 r 50A(7), the Applicant was not required to commence separate proceedings and could seek that relief by Notice of Motion in the existing proceedings. The Respondent's procedural objection was therefore overruled, but final relief could not be determined until the Respondent had an opportunity to adduce evidence.

Court Disposition

Respondent's objection to the use of Notice of Motion overruled; proceedings adjourned for the Respondent to file evidence.

Orders

  • ['Proceedings adjourned to 10 November 1993.' 'Respondent directed to serve and file any affidavits by 3 November 1993.']