Owners Corporation - Strata Plan 61732 v T R Druce Pty Ltd [2009] NSWSC 1024

Owners Corporation - Strata Plan 61732 v T R Druce Pty Ltd [2009] NSWSC 1024

The first defendant’s failure to provide ordered security for costs justifies dismissal of its cross-claim under r 42.21(3); the cross-defendants did not discharge their onus to show no triable issue or lack of reasonable cause in the second defendant’s cross-claims, so summary dismissal is refused.

Jurisdiction
Australia
Judgment Date
11 September 2009
Procedural Posture
Civil / Interlocutory Application and Ruling on Cross Claims
Outcome
TR Druce’s cross-claim dismissed; applications for summary dismissal by Hanlon and Xypex dismissed; orders as to costs.
Legal Topics
['security for Costs' 'summary Dismissal' 'statutory Warranties' 'negligence' 'misleading or Deceptive Conduct']
['civil Procedure' 'construction Law'] ['security for Costs' 'summary Dismissal' 'statutory Warranties' 'negligence' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Civil / Interlocutory Application and Ruling on Cross Claims

Legal Issues

  1. 1 ['Should the cross-claim filed by the first defendant be dismissed for failure to provide security for costs under r 42.21(3) of the Uniform Civil Procedure Rules?' 'Should the cross-claims filed by the second defendant be summarily dismissed under r 13.4(1) of the Uniform Civil Procedure Rules?' 'Is there a reasonable cause of action against Hanlon or Xypex?' 'Does the lack of evidence justify summary dismissal?' 'Are the claims disproportionate to the costs incurred?']

Ratio Decidendi

The first defendant’s failure to provide ordered security for costs justifies dismissal of its cross-claim under r 42.21(3); the cross-defendants did not discharge their onus to show no triable issue or lack of reasonable cause in the second defendant’s cross-claims, so summary dismissal is refused.

Court Disposition

TR Druce’s cross-claim dismissed; applications for summary dismissal by Hanlon and Xypex dismissed; orders as to costs.

Orders

  • ['The cross-claim filed by the first defendant against the first and second cross-defendants is dismissed pursuant to r 42.21(3) of the Uniform Civil Procedure Rules.' 'The first defendant (first cross-claimant) to pay the costs of the first and second cross-defendants of its cross-claim.' 'The notices of motion...