HASTIE v NIXON [1990] NSWCA 88

HASTIE v NIXON [1990] NSWCA 88

Leave to amend the summons was granted as appropriate in the circumstances to clarify the relief sought; a stay of execution was granted on the condition that the claimant pay $5,000 to the solicitors for the opponent on account of costs, since there was a real question whether the claimant had a fair opportunity to have his case heard and such a stay was justified to prevent prejudice, subject to compliance with strict conditions.

Parties
Claimant: URJ Hastie; Opponent: Nixon
Jurisdiction
Australia
Judgment Date
21 December 1990
Procedural Posture
Application for Stay and Leave to Amend Summons / Interlocutory (application for Stay and Amendment Pending Hearing of Summons)
Outcome
Application for leave to amend summons granted; stay of execution granted on condition of payment by claimant.
Legal Topics
Stay of Execution, Amendment of Summons, Setting Aside Summary Judgment
Civil Procedure Stay of Execution Amendment of Summons Setting Aside Summary Judgment

Case Brief

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Parties

URJ Hastie

Claimant

Nixon

Opponent

Procedural Posture

Application for Stay and Leave to Amend Summons / Interlocutory (application for Stay and Amendment Pending Hearing of Summons)

Legal Issues

  1. 1 Whether leave to amend the summons to seek an order setting aside Judge Downs' decision should be granted
  2. 2 Whether a stay of execution of the District Court judgment should be granted pending hearing of the amended summons

Ratio Decidendi

Leave to amend the summons was granted as appropriate in the circumstances to clarify the relief sought; a stay of execution was granted on the condition that the claimant pay $5,000 to the solicitors for the opponent on account of costs, since there was a real question whether the claimant had a fair opportunity to have his case heard and such a stay was justified to prevent prejudice, subject to compliance with strict conditions.

Court Disposition

Application for leave to amend summons granted; stay of execution granted on condition of payment by claimant.

Orders

  • Leave granted to claimant to amend the summons to include the additional material.
  • Claimant to file and serve amended summons by 4 February 1991.