YIHE (Australia) Pty Ltd v Omaya Investments Pty Ltd [2010] NSWSC 1211

YIHE (Australia) Pty Ltd v Omaya Investments Pty Ltd [2010] NSWSC 1211

The urgency is self-induced because the plaintiff entered into its contract with the builder knowing it did not have the requisite easements, had not instituted proceedings, and was aware the application would be opposed; granting expedition would reward the self-induced creation of urgency, especially as it would cause disruption to the first defendant.

Parties
Plaintiff: YIHE (Australia) Pty Ltd; First Defendant: Omaya Investments Pty Ltd; Second Defendant: Con Andrew Constantine; Third Defendant: Al Maha Pty Ltd
Jurisdiction
Australia
Judgment Date
24 September 2010
Procedural Posture
Motion / Expedition Application
Outcome
Motion for expedition dismissed with costs.
Legal Topics
Expedition, Setting Down for Trial, Easements, Self Induced Urgency, Disruption to Defendant
Procedure Equity Expedition Setting Down for Trial Easements Self Induced Urgency Disruption to Defendant

Case Brief

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Parties

YIHE (Australia) Pty Ltd

Plaintiff

Omaya Investments Pty Ltd

First Defendant

Con Andrew Constantine

Second Defendant

Al Maha Pty Ltd

Third Defendant

Procedural Posture

Motion / Expedition Application

Legal Issues

  1. 1 Whether the hearing should be expedited
  2. 2 Whether urgency is self-induced
  3. 3 Balancing hardship to applicant from delay against disruption to respondent

Ratio Decidendi

The urgency is self-induced because the plaintiff entered into its contract with the builder knowing it did not have the requisite easements, had not instituted proceedings, and was aware the application would be opposed; granting expedition would reward the self-induced creation of urgency, especially as it would cause disruption to the first defendant.

Court Disposition

Motion for expedition dismissed with costs.

Orders

  • Motion filed 30 August 2010 dismissed with costs.
  • Defendants to serve affidavit evidence by 5 November 2010.