Aquaqueen International Pty Ltd v Titan National Pty Ltd (No. 3) [2014] NSWDC 219

Aquaqueen International Pty Ltd v Titan National Pty Ltd (No. 3) [2014] NSWDC 219

The applicants failed to comply with the procedural and evidentiary requirements for adjournment or for setting aside orders made in their absence; no adequate or credible documentary support for adjournment, no demonstration of prospects of success, and process abused by repeated inadequate applications. Accordingly, the notice of motion was dismissed and indemnity costs awarded in a gross sum.

Parties
First Applicant: Aquaqueen International Pty Ltd; Second Applicant: Shirley Penson; First Respondent: Titan National Pty Ltd; Second Respondent: Kathryn Wood-Weber
Jurisdiction
Australia
Judgment Date
09 October 2014
Procedural Posture
Civil / Notice of Motion to Set Aside or Stay Earlier Orders, and for Adjournment
Outcome
Notice of motion dismissed; applicants ordered to pay indemnity costs in a lump sum.
Legal Topics
Setting Aside or Varying Orders, Adjournment Applications, Costs (indemnity Basis), Gross Sum Costs Orders
Civil Procedure Setting Aside or Varying Orders Adjournment Applications Costs (indemnity Basis) Gross Sum Costs Orders

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Parties

Aquaqueen International Pty Ltd

First Applicant

Shirley Penson

Second Applicant

Titan National Pty Ltd

First Respondent

Kathryn Wood-Weber

Second Respondent

Procedural Posture

Civil / Notice of Motion to Set Aside or Stay Earlier Orders, and for Adjournment

Legal Issues

  1. 1 Whether the applicants demonstrated adequate grounds for adjournment of their application to set aside or stay prior orders under UCPR r 36.16
  2. 2 Whether the requirements for setting aside or varying previous orders under UCPR r 36.16 were satisfied by the applicants
  3. 3 Whether an order for lump sum indemnity costs should be made against the applicants

Ratio Decidendi

The applicants failed to comply with the procedural and evidentiary requirements for adjournment or for setting aside orders made in their absence; no adequate or credible documentary support for adjournment, no demonstration of prospects of success, and process abused by repeated inadequate applications. Accordingly, the notice of motion was dismissed and indemnity costs awarded in a gross sum.

Court Disposition

Notice of motion dismissed; applicants ordered to pay indemnity costs in a lump sum.

Orders

  • Mrs Penson and Aquaqueen International Pty Ltd called outside Court 13D three times at 9:36am - no appearance.
  • Mrs Penson and Aquaqueen International Pty Ltd called outside Court 13D three times at 10:05am - no appearance.