Colbron W v St Bees Island P/l & Ors [1994] FCA 1061

Colbron W v St Bees Island P/l & Ors [1994] FCA 1061

Although there was acknowledged non-compliance by the respondents with the order to file a verified list of documents, it would be wrong to exercise the Court’s discretion so peremptorily and without more evidence than this non-compliance, especially in the absence of supporting affidavit evidence.

Parties
Applicant: Warwick Colbron; First Respondent: St Bees Island Pty Ltd ACN 010 400 572; Second Respondent: Lionel Neil Berck; Third Respondent: Margaret Ottlie Berck; Fourth Respondent: John Francis Urch; Fifth Respondent: Whitsunday Island Developments Pty Limited (ACN 059 374 882)
Jurisdiction
Australia
Judgment Date
06 December 1994
Procedural Posture
Civil / Interlocutory Motion (order 10, R 7) for Judgment Based on Non Compliance With Prior Court Orders
Outcome
Motion dismissed in part, motion stood over for costs and fixing hearing date
Legal Topics
Non Compliance With Court Orders, Interlocutory Applications, Costs, Federal Court Rules Order 10, R 7
Civil Procedure Non Compliance With Court Orders Interlocutory Applications Costs Federal Court Rules Order 10, R 7

Case Brief

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Parties

Warwick Colbron

Applicant

St Bees Island Pty Ltd ACN 010 400 572

First Respondent

Lionel Neil Berck

Second Respondent

Margaret Ottlie Berck

Third Respondent

John Francis Urch

Fourth Respondent

Whitsunday Island Developments Pty Limited (ACN 059 374 882)

Fifth Respondent

Procedural Posture

Civil / Interlocutory Motion (order 10, R 7) for Judgment Based on Non Compliance With Prior Court Orders

Legal Issues

  1. 1 Whether the Court should give judgment for the applicant under Order 10, r 7 due to respondents' non-compliance with court orders made on 5 September 1994

Ratio Decidendi

Although there was acknowledged non-compliance by the respondents with the order to file a verified list of documents, it would be wrong to exercise the Court’s discretion so peremptorily and without more evidence than this non-compliance, especially in the absence of supporting affidavit evidence.

Court Disposition

Motion dismissed in part, motion stood over for costs and fixing hearing date

Orders

  • Motion dismissed insofar as it seeks order number (2)
  • Motion stood over to 8 December 1994 at 9:30 am for the question of costs and with a view to fixing a hearing date