El-Hanania v Vella (No 2) [2019] NSWCA 212

El-Hanania v Vella (No 2) [2019] NSWCA 212

The proceedings were only capable of being instituted because of an indulgence extending time, and that indulgence was conditional on payment into Court of $212,765.37 and provision of $35,000 security for costs. Because the conditions were not satisfied and the applicant did not show cause why the summons should not be dismissed as incompetent, the proceedings had to be taken not to have been regularly instituted and were dismissed.

Jurisdiction
Australia
Judgment Date
19 August 2019
Procedural Posture
Civil Procedure Proceedings Concerning Extension of Time to Appeal and Dismissal of Proceedings / Consequential Orders After Failure to Comply With Conditions of Extension of Time and Failure to Show Cause
Outcome
Proceedings dismissed, with costs payable by the applicant to the respondent, subject to delayed effect and reserved leave to apply to set aside.
Legal Topics
['dismissal of Proceedings' 'extension of Time to Appeal' 'security for Costs' 'conditional Orders' 'failure to Show Cause']
['civil Procedure'] ['dismissal of Proceedings' 'extension of Time to Appeal' 'security for Costs' 'conditional Orders' 'failure to Show Cause']

Case Brief

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Procedural Posture

Civil Procedure Proceedings Concerning Extension of Time to Appeal and Dismissal of Proceedings / Consequential Orders After Failure to Comply With Conditions of Extension of Time and Failure to Show Cause

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed where the extension of time for filing the summons was conditional on payment into Court and provision of security for costs, and those conditions were not met.' 'Whether the applicant showed cause why the summons should not be dismissed as incompetent.']

Ratio Decidendi

The proceedings were only capable of being instituted because of an indulgence extending time, and that indulgence was conditional on payment into Court of $212,765.37 and provision of $35,000 security for costs. Because the conditions were not satisfied and the applicant did not show cause why the summons should not be dismissed as incompetent, the proceedings had to be taken not to have been regularly instituted and were dismissed.

Court Disposition

Proceedings dismissed, with costs payable by the applicant to the respondent, subject to delayed effect and reserved leave to apply to set aside.

Orders

  • ['Order that the proceedings be dismissed.' "Order that the applicant pay the respondent's costs." 'Direct that within 72 hours the respondent serve a sealed copy of these orders on the applicant and file an affidavit of service proving compliance with this direction.' 'Reserve leave to the applicant to set aside...