Ghosh v Scott Newtown trading as Shaw Gidley (No 10) [2024] NSWSC 1170

Ghosh v Scott Newtown trading as Shaw Gidley (No 10) [2024] NSWSC 1170

The motion was dismissed because the Court had considered the relevant submissions, the applicant failed to demonstrate any misapprehension as to facts or law warranting the exercise of discretion under r 36.16, and the defects in the applicant’s pleadings were incurable on the material presented, such that any assumed prejudice regarding limitation periods would not have altered the outcome.

Parties
Plaintiff: Ratna Ghosh; First Defendant: Scott Newton; Second Defendant: Rodney Miller
Jurisdiction
Australia
Judgment Date
12 September 2024
Procedural Posture
Equity Motion / Motion to Set Aside or Vary Orders Prior to Entry of Judgment
Outcome
Plaintiff's motion dismissed
Legal Topics
Setting Aside or Varying Orders, Summary Dismissal, Limitation Periods, Jurisdiction and Transfer of Proceedings
Civil Procedure Setting Aside or Varying Orders Summary Dismissal Limitation Periods Jurisdiction and Transfer of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Ratna Ghosh

Plaintiff

Scott Newton

First Defendant

Rodney Miller

Second Defendant

Procedural Posture

Equity Motion / Motion to Set Aside or Vary Orders Prior to Entry of Judgment

Legal Issues

  1. 1 Whether the Court failed to consider a significant submission under UCPR r 36.16 supporting a motion to set aside or vary orders
  2. 2 Whether the dismissal caused the plaintiff prejudice under the Limitation Act 1969 (NSW) s 48
  3. 3 Whether the applicant made out any basis for setting aside the orders, particularly in light of serial defective pleadings

Ratio Decidendi

The motion was dismissed because the Court had considered the relevant submissions, the applicant failed to demonstrate any misapprehension as to facts or law warranting the exercise of discretion under r 36.16, and the defects in the applicant’s pleadings were incurable on the material presented, such that any assumed prejudice regarding limitation periods would not have altered the outcome.

Court Disposition

Plaintiff's motion dismissed

Orders

  • The plaintiff's amended notice of motion dated 1 September 2024 is dismissed.
  • The plaintiff is to pay the first defendant's costs of the motion.