Equuscorp P/L v Orazio

[2000] QCA 117

[2000] QCA 117

COURT OF APPEAL

de JERSEY CJ
PINCUS JA

McPHERSON JA

Appeal No 11547 of 1999

EQUUSCORP PTY. LTD.

ACN 006 102 344	Appellant (Plaintiff)
v.
ANTHONY RINO ORAZIO	Respondent (Defendant)
BRISBANE ..DATE 11/02/2000
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THE CHIEF JUSTICE: This appeal challenges orders
made by a Chamber Judge consequent upon deemed
admissions following the delivery of notices to
admit. The plaintiff failed to respond because of
its solicitor's inadvertence. The learned Judge

found that explanation not particularly meritorious.

He went on, however, to add that although the

plaintiff claimed a wish to dispute the allegations
basing the deemed admissions, it had advanced no
evidence contradicting them, as might have been
expected as the plaintiff invited the Court's
discretion, in applying for leave to withdraw the

admissions.

Mr Wilson, who advanced excellent submissions before
us this morning, has shown us what he puts forward
as the best evidence in contradiction, referring to
entries in the company's books of account, but they
went nowhere towards establishing the necessary
actual payments under the terms of the loan

agreement.

It has not been established that the Judge's
exercise of discretion in declining to allow the
withdrawal of the admissions miscarried.
Consequently this judgment should be affirmed and
the application for a stay refused. We effectively
heard the appeal without objection in response to
the defendant's application that it be struck out.

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It would be pointless and unproductive that we
should allow the appeal to remain alive at this

stage.

I would allow the defendant's application and
consequently order that the plaintiff's appeal be
dismissed and I would in further consequence refuse
the plaintiff's application for a stay in each case

with costs to be assessed.

PINCUS JA: I agree.

McPHERSON JA: I also agree.

THE CHIEF JUSTICE: Those are the orders.

MR HEYWORTH-SMITH: Your Honour, may I raise another point. May there be liberty to apply in respect to costs for this reason. That there is a suspicion that Equuscorp may not be able to answer the costs order and if that is the case I would wish to place submissions before the Court by the solicitors for Equuscorp should pay those costs personally.

THE CHIEF JUSTICE: Well wouldn't you do that by a separate application in the proceedings?

MR HEYWORTH-SMITH: But provided the proceedings are
still alive I can do it by separate application,
yes.

THE CHIEF JUSTICE: I see what you mean. Liberty to apply further with relation to the issue of costs.

MR HEYWORTH-SMITH: Thank you, your Honour.

THE CHIEF JUSTICE: So the costs of all proceedings to this point have been dealt with by my reference

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to with costs to be assessed and then we have added
another provision liberty to apply in response to Mr

Heyworth-Smith's point.

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