Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd

Cosmos E-C Commerce Pty Ltd (the claimant) sought leave to appeal out of time from orders made by Judge Rolfe and Acting Judge Cooper. The claimant also sought stays of those orders. The opponent, Sue Bidwell & Associates Pty Ltd, sought costs and security for those costs.

The central legal issues before the court concerned the appropriateness of summary disposal of defences, specifically whether a denial of contract and performance constituted an impermissible "pleading of the general issue". The court also considered whether findings contrary to a defendant's affidavit could be made on a summary judgment application without cross-examination, and the extent to which the terms of a contract could be determined at a hearing for damages after a judgment for the plaintiff had been given. Further issues included whether cross-defendants were bound by a determination of damages in a hearing between the plaintiff and defendant, and whether a stay of a damages hearing should be granted.

The court granted leave to the claimant to apply out of time for leave to appeal and stayed the orders made by Acting Judge Cooper and Judge Rolfe pending the hearing of those applications. The claimant was ordered to pay the opponent's costs of the application and all costs thrown away by reason of a vacated hearing, with security for these costs to be provided in the sum of $10,000. The stays were conditional on this security being paid by a specified time. The claimant was directed to proceed with expedition in bringing about the hearing of the leave applications.