Nova 96.9 Pty Limited & Ors v Natvia Pty Limited [2018] NSWDC 74

Nova 96.9 Pty Limited & Ors v Natvia Pty Limited [2018] NSWDC 74

The court was not satisfied that Natvia Pty Ltd would be unable to pay the plaintiffs' costs of the cross-claim if ordered to do so, because the unchallenged evidence showed it was a viable going concern with significant sales, profitability, and liquid assets. Although the pleading that the oral representation was a material term of the written agreements was problematic, the defendant had pleaded in the Amended Defence that the representation formed a collateral contract, and the court declined to shut it out from advancing that contractual claim.

Jurisdiction
Australia
Judgment Date
29 March 2018
Procedural Posture
Civil; Procedural and Other Rulings / Plaintiffs' Notice of Motion for Security for Costs and to Strike Out Paragraphs of the Defendant's Cross Claim
Outcome
Plaintiffs' Notice of Motion filed on 7 December 2017 dismissed; costs of the Notice of Motion to be costs in the cause.
Legal Topics
['security for Costs' 'strike Out of Pleading' 'cross Claim' 'collateral Contract' 'entire Agreement Clause' 'misleading or Deceptive Conduct']
['costs' 'practice and Procedure' 'corporations'] ['security for Costs' 'strike Out of Pleading' 'cross Claim' 'collateral Contract' 'entire Agreement Clause' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Civil; Procedural and Other Rulings / Plaintiffs' Notice of Motion for Security for Costs and to Strike Out Paragraphs of the Defendant's Cross Claim

Legal Issues

  1. 1 ["Whether there was reason to believe that Natvia Pty Ltd would be unable to pay the plaintiffs' costs of the cross-claim if ordered to do so." 'Whether paragraphs 15-17 of the cross-claim should be struck out because the alleged oral representation was pleaded as a term of written agreements containing entire agreement provisions rather than as a collateral contract.']

Ratio Decidendi

The court was not satisfied that Natvia Pty Ltd would be unable to pay the plaintiffs' costs of the cross-claim if ordered to do so, because the unchallenged evidence showed it was a viable going concern with significant sales, profitability, and liquid assets. Although the pleading that the oral representation was a material term of the written agreements was problematic, the defendant had pleaded in the Amended Defence that the representation formed a collateral contract, and the court declined to shut it out from advancing that contractual claim.

Court Disposition

Plaintiffs' Notice of Motion filed on 7 December 2017 dismissed; costs of the Notice of Motion to be costs in the cause.

Orders

  • ["Plaintiffs' Notice of Motion filed on 7 December 2017 is dismissed." 'Order that the costs of the Notice of Motion are to be costs in the cause.']