Citicorp Australia Ltd & Ors v Cirillo & Anor No. Scciv-85-1481

[2001] SASC 104

CITICORP AUSTRALIA LIMITED & ORS V CIRILLO & ANOR
[2001] SASC 104

Civil (Ex Tempore)

LANDER J.           This is an application by the plaintiff for an order dismissing the first defendant’s application for inquiry as to damages, in respect of an undertaking given by the plaintiffs in support of an order for an injunction on 3 May 1985 by Cox J, and two further orders extending that injunction made by White J on 10 May 1985, and 24 May 1985.

This matter has been set for hearing for some time. This morning I refused an application for an adjournment by the first defendant, for reasons which I gave at that time. I granted the first defendant two short adjournments, the first for 15 minutes so that instructions could be taken in relation to my refusal to grant of adjournment and the second for a period between 12 o’clock and 2.15, so that counsel could be consulted about my refusal to grant an adjournment.

The matter resumed at 2.15 pm  The first defendant renewed his application for an adjournment upon the same grounds as the application this morning, and I dismissed the application for the same reasons I gave this morning. After refusing the adjournment, I asked the solicitor for the plaintiff, to present the plaintiff’s case. He said that he could not and would not and he adduced no evidence in support of the plaintiff’s case.

Mr Wells QC, has now made an application under rule 2.09 of the Supreme Court Rules, for an order striking out the application for an inquiry as to damages in respect of the plaintiff’s undertaking. The first defendant has refused my offer of a further short adjournment to take instructions from his client. I inquired again whether the first defendant would present his evidence, so that the matter could proceed, but was advised that no evidence would be presented in support of the first defendant’s application for an inquiry as to damages. It seems to me that unless I accede to Mr Wells’s application, then the matter would have to be adjourned, which of course would be a perverse result, because I have refused such an application.  In my opinion it would be appropriate, in the circumstances, where the matter has been called on and no evidence has been led, or will be led in support of the application, that the application should be dismissed.

I therefore make an order dismissing the first defendant’s application for an inquiry as to damages in respect to the plaintiff’s undertaking.