National Australia Bank Limited v John Edward Roberts & Ors [2002] NSWSC 1048

National Australia Bank Limited v John Edward Roberts & Ors [2002] NSWSC 1048

The application to vacate the fixture was dismissed because, despite the change of solicitors, the evidence showed no more than problems arising from that change; the proceedings were complex but had been on foot for about twenty months, the first and second defendants had a lengthy history of non-compliance with directions, the materials supporting the application were scant, the hearing had been fixed since early July, there remained about three months before trial, and a competent legal team assisted by a timetable including full discovery by the plaintiff should have sufficient time to prepare. The overriding purpose rule supported refusing the adjournment.

Jurisdiction
Australia
Judgment Date
25 October 2002
Procedural Posture
Practice and Procedure Application to Vacate Hearing Date Fixture / Notice of Motion by the First and Second Defendants Seeking an Order Vacating the Final Hearing Listed to Commence on 3 February 2003
Outcome
Application to vacate fixture dismissed.
Legal Topics
['application to Vacate Hearing Fixture' 'change of Solicitor' 'non Compliance With Directions' 'overriding Purpose Rule' 'exercise of Discretion' 'discovery']
['civil Procedure' 'commercial Litigation'] ['application to Vacate Hearing Fixture' 'change of Solicitor' 'non Compliance With Directions' 'overriding Purpose Rule' 'exercise of Discretion' 'discovery']

Case Brief

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Procedural Posture

Practice and Procedure Application to Vacate Hearing Date Fixture / Notice of Motion by the First and Second Defendants Seeking an Order Vacating the Final Hearing Listed to Commence on 3 February 2003

Legal Issues

  1. 1 ['Whether the final hearing date should be vacated because the first and second defendants had changed solicitors and said they could not practicably prepare for the hearing.' 'Whether the overriding purpose of the Supreme Court Rules supported dismissal of the application to vacate the fixture.' 'Whether the history of non-compliance with directions and the time already available for preparation weighed against vacating the hearing date.']

Ratio Decidendi

The application to vacate the fixture was dismissed because, despite the change of solicitors, the evidence showed no more than problems arising from that change; the proceedings were complex but had been on foot for about twenty months, the first and second defendants had a lengthy history of non-compliance with directions, the materials supporting the application were scant, the hearing had been fixed since early July, there remained about three months before trial, and a competent legal team assisted by a timetable including full discovery by the plaintiff should have sufficient time to prepare. The overriding purpose rule supported refusing the adjournment.

Court Disposition

Application to vacate fixture dismissed.

Orders

  • ['Application to vacate fixture dismissed.']