Hans Pet Constructions Pty Ltd v Cassar

Case [2009] NSWCA 230

New South Wales


Court of Appeal


CITATION: Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
HEARING DATE(S): 16 July 2009
 
JUDGMENT DATE: 
31 July 2009
JUDGMENT OF: Allsop ACJ at 1; Campbell JA at 49; Young JA at 50
DECISION: 1. Leave to appeal granted.
2. The appellant to file a Notice of Appeal within 7 days.
3. Appeal dismissed.
4. Appellant pay the respondent's costs.
CATCHWORDS: PROCEDURE - judgments and orders – orders striking out defence – defendants seeking to vacate hearing date – delay in obtaining evidence and particulars from the plaintiff - no notice of motion filed by defendant to vacate hearing date – review of decision of magistrate striking out defence – relevant considerations – Civil Procedure Act 2005 (NSW) s 58 – failure to take into account statutorily required considerations of Civil Procedure Act 2005 (NSW) s 56 and s57 – just determination of the proceedings – matter not given weight as a fundamental element in the decision making process - proportional use of power to strike out defence - Civil Procedure Act 2005 (NSW) – s 56 – s 57 – s 58 – s 61
LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules (NSW)
Local Court Practice Note No 1 of 2005
CATEGORY: Principal judgment
CASES CITED: Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCabe (deceased)) [2002] VSCA 197; 7 VR 524
Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386).
Commissioner of Police for New South Wales v Industrial Commission of New South Wales & Raymond Sewell [2009] NSWCA 198
Dennis v Australian Broadcasting Commission [2008] NSWCA 37
House v R [1936] HCA 40; 55 CLR 499
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24
Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439
Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146
Szczygiel v Peeku Holdings [2006] NSWSC 73
PARTIES: Hans Pet Constructions Pty Limited (Appellant)
Kay Isabel Cassar (1st Respondent)
Frank Savior Cassar (2nd Respondent)
FILE NUMBER(S): CA 40092/09
COUNSEL: D Talintyre (Appellant)
H Altan (Respondents)
SOLICITORS: Moloney Lawyers. Potts Point (Appellant)
Eddelbuttel Law, Cundletown (Respondents)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 13795/2008
LOWER COURT JUDICIAL OFFICER: Rothman J
LOWER COURT DATE OF DECISION: 23 December 2008
LOWER COURT MEDIUM NEUTRAL CITATION: Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386




                          40092/09

                          ALLSOP ACJ
                          CAMPBELL JA
                          YOUNG JA

                          Friday 31 July 2009

HANS PET CONSTRUCTIONS PTY LIMITED v CASSAR

Headnote

      The Cassars were defendants in a claim made by Hans Pet Pty Ltd (Hans Pet) in the Local Court of NSW.

      Directions were made by the Local Court, allocating a special fixture three day hearing date, setting out a timetable for the parties to prepare themselves for the hearing and listing the matter for pre-trial directions 28…

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Details
AGLC
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Case
[2009] NSWCA 230
Decision Date

CaseChat Overview and Summary

Hans Pet Constructions Pty Ltd (the appellant) sought to appeal a decision of a magistrate who had struck out the appellant's defence. The dispute concerned the appellant's failure to obtain evidence and particulars from the respondent, Cassar, which led to the magistrate's decision to strike out the defence, despite the appellant not having filed a formal notice of motion to vacate the hearing date. The appeal was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the magistrate erred in striking out the appellant's defence. This involved considering whether the magistrate had properly taken into account the overarching principles and objectives set out in sections 56 and 57 of the *Civil Procedure Act 2005* (NSW), particularly the requirement for the just determination of proceedings and the proportional use of court powers, as mandated by section 58 of the Act.

The Court of Appeal found that the magistrate had failed to give sufficient weight to the fundamental element of achieving a just determination of the proceedings and the proportional use of the power to strike out a defence. The Court noted that striking out a defence is a drastic measure and should only be employed when other, less severe, options are insufficient. While leave to appeal was granted, the appeal itself was ultimately dismissed. The appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. Leave to appeal granted. 2. The appellant to file a Notice of Appeal within 7 days. 3. Appeal dismissed. 4. Appellant pay the respondent's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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