Li v Deng [2010] NSWSC 209

Li v Deng [2010] NSWSC 209

A short adjournment was justified because proceeding with the possession hearing might render the pending appeal nugatory and the effectively unrepresented Defendant should not be shut out from arguing her asserted life interest and any answer to estoppel; however, because the adjournment caused costs to be thrown away and the asserted life interest was a positive claim, the Defendant was required to file a cross-claim and her right to proceed on the defence and cross-claim was stayed until she paid $1,500 towards the Plaintiff's costs.

Jurisdiction
Australia
Judgment Date
19 March 2010
Procedural Posture
Proceedings Seeking Possession of Property / Defendant's Adjournment Application at Listed Hearing
Outcome
Adjournment granted on conditions; hearing date vacated; Defendant ordered to file and serve a cross-claim, pay costs thrown away, and pay $1,500 before proceeding further on the defence and cross-claim.
Legal Topics
['adjournment' 'vacation of Hearing Date' 'possession of Land' 'cross Claim for Life Interest' 'costs Thrown Away' 'stay Conditional on Payment of Costs']
['procedure' 'property Law' 'equity'] ['adjournment' 'vacation of Hearing Date' 'possession of Land' 'cross Claim for Life Interest' 'costs Thrown Away' 'stay Conditional on Payment of Costs']

Case Brief

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Procedural Posture

Proceedings Seeking Possession of Property / Defendant's Adjournment Application at Listed Hearing

Legal Issues

  1. 1 ['Whether the listed hearing should be adjourned and the hearing date vacated.' "Whether proceeding with the possession proceedings was likely to render the Defendant's appeal in related proceedings nugatory." "Whether the Defendant's asserted life interest should be pleaded by cross-claim rather than merely by defence." "Whether the Defendant's right to proceed should be stayed unless part of the costs thrown away by the adjournment were paid."]

Ratio Decidendi

A short adjournment was justified because proceeding with the possession hearing might render the pending appeal nugatory and the effectively unrepresented Defendant should not be shut out from arguing her asserted life interest and any answer to estoppel; however, because the adjournment caused costs to be thrown away and the asserted life interest was a positive claim, the Defendant was required to file a cross-claim and her right to proceed on the defence and cross-claim was stayed until she paid $1,500 towards the Plaintiff's costs.

Court Disposition

Adjournment granted on conditions; hearing date vacated; Defendant ordered to file and serve a cross-claim, pay costs thrown away, and pay $1,500 before proceeding further on the defence and cross-claim.

Orders

  • ['The hearing date of today is vacated.' 'The Defendant is to file and serve a cross-claim setting out the claim for the life interest that she makes in paragraph 4 of the defence and evidenced in paragraphs 28 and 53 of her affidavit of 2 March 2010.' 'That cross-claim is to be filed and served by 5pm on Friday 9...