Khouzame v Reozone Pty Ltd (No 2) [2015] NSWSC 1286

Khouzame v Reozone Pty Ltd (No 2) [2015] NSWSC 1286

Although the appeal did not appear especially strong, the Court was not satisfied in the absence of more detailed argument and in the plaintiff's absence that its prospects were so hopeless as to justify summary dismissal. Because the plaintiff had actual notice of the listing and the need to attend, the due notice requirement of Rule 13.6 was satisfied, and the appropriate course was to adjourn the appeal with notice that it may be dismissed if the plaintiff again failed to attend, with the defendant's costs of the day to be costs in the appeal.

Jurisdiction
Australia
Judgment Date
31 August 2015
Procedural Posture
Local Court Appeal / Hearing of Appeal; Defendant's Application for Summary Dismissal Following Non Appearance by the Plaintiff
Outcome
Appeal adjourned; summary dismissal not ordered; defendant's costs of the day to be its costs in the appeal.
Legal Topics
['default of Appearance' 'summary Dismissal' 'adjournment' 'notice to Show Cause' 'costs']
['civil Procedure' 'appeals'] ['default of Appearance' 'summary Dismissal' 'adjournment' 'notice to Show Cause' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Local Court Appeal / Hearing of Appeal; Defendant's Application for Summary Dismissal Following Non Appearance by the Plaintiff

Legal Issues

  1. 1 ['Whether the appeal should be summarily dismissed in the absence of the plaintiff.' 'Whether the appeal should be adjourned under Rule 13.6 Uniform Civil Procedure Rules 2005 (NSW) with notice that it may be dismissed if the plaintiff does not attend.' "Whether the defendant's costs of the day should be costs in the appeal."]

Ratio Decidendi

Although the appeal did not appear especially strong, the Court was not satisfied in the absence of more detailed argument and in the plaintiff's absence that its prospects were so hopeless as to justify summary dismissal. Because the plaintiff had actual notice of the listing and the need to attend, the due notice requirement of Rule 13.6 was satisfied, and the appropriate course was to adjourn the appeal with notice that it may be dismissed if the plaintiff again failed to attend, with the defendant's costs of the day to be costs in the appeal.

Court Disposition

Appeal adjourned; summary dismissal not ordered; defendant's costs of the day to be its costs in the appeal.

Orders

  • ['Under Rule 13.6 UCPR in default of appearance of the plaintiff on the hearing of this appeal, I adjourn the appeal for hearing on 14 September 2015 or on such later date as the Registrar may direct.' 'I direct the Registrar to provide notice, in accordance with Rule 13.6, advising the plaintiff that the...