Hans Pet Constructions Pty Ltd v Cassar

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.