Moses v Ratner (No 2) - [2021] NSWSC 960

Supreme Court

New South Wales

Medium Neutral Citation: Moses v Ratner (No 2) [2021] NSWSC 960
Hearing dates: 26 July 2021
Date of orders: 26 July 2021
Decision date: 26 July 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The plaintiff’s notice of motion is dismissed.
(2) The defendants are to pay the costs of the motion.

Catchwords:
CIVIL PROCEDURE – Pleadings – Striking Out – Abuse of process - Plaintiff’s motion to strike out a defence and for subsequent default judgment following regular delays and failures to comply with court orders by the defendants – Requirement to do justice to both parties – Motion dismissed
COSTS – Party/party – Exception to general rule that costs follow the event – Delays caused by solicitors for the defendants and not the parties themselves

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bi v Mourad [2010] NSWCA 17
Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer [2016] NSWSC 1252
Hoser v Hartcher [1999] NSWSC 527
Moses v Ratner [2021] NSWSC 185
Templar v Watt [2014] NSWSC 937

Category: Procedural rulings
Parties: Michael Isaac Moses (Plaintiff)
Gabriella Ratner (First Defendant)
John Ratner (Second Defendant)
Representation:
Counsel:
A Gruzman (Plaintiff)
M Fozzard (Defendant)
Solicitors:
Boskovitz & Associates (Plaintiff)
A R Conolly & Company (Defendants)

File Number(s): 2019/354282
Publication restriction: None

REVISED EX TEMPORE Judgment

By way of an amended notice of motion filed on 7 June 2021, the plaintiff seeks a number of orders, including:

an order that the defendants’ defence be struck out for want of due dispatch, in accordance with r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”);

an order under r 16.3 UCPR for judgment in default, if the defence is struck out;

an order that the notice of motion filed by the defendants dated 9 April 2021 be dismissed; or

in the alternative, an order that the defendants’ notice of motion dated 9 April 2021 be permanently stayed.

This application is the latest instalment in a protracted dispute arising out of a joint venture between the parties for the purposes of undertaking development of a property in Blake Street, Rose Bay.
The defendants have filed their own motion seeking leave to withdraw admissions made pursuant to a notice to admit facts served by the plaintiff and for that notice to admit be struck out as an abuse of process, which has not yet been listed for hearing. Neither party was ready to proceed with that motion today.
Adrian Gruzman appears for plaintiff. Mark Fozzard appears for the defendants. Both counsel provided written and oral submissions.
The plaintiff relies on affidavits from the plaintiff dated 24 May 2021, 4 June 2021 and 15 July 2021. The second defendant relies on an affidavit of his solicitor, Alan Robert Conolly dated 8 July 2021, as well as a significant number of documents as contained in the court book. Mr Conolly was cross-examined on the content of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moses v Ratner (No 2)

Details

AGLC: Moses v Ratner (No 2) [2021] NSWSC 960
Case: [2021] NSWSC 960
Decision Date: 26 July 2021

CaseChat Overview and Summary

Moses v Ratner was an action heard in the Supreme Court of Victoria. The plaintiff, Moses, sought to strike out the defendants' defence and obtain a default judgment following numerous delays and failures by the defendants to comply with court orders. The defendants, Ratner, opposed the plaintiff's motion. The court had to determine whether the plaintiff's motion to strike out the defence and enter a default judgment should be granted, and whether the general rule that costs follow the event should be departed from in this case. The court also had to consider whether there were any exceptional circumstances that would justify awarding costs against a party other than the one who caused the delay.
The court held that it was not appropriate to grant the plaintiff's motion to strike out the defence and enter a default judgment. The court noted that it must do justice to both parties and that the defendants had not acted in bad faith. The court also held that the general rule that costs follow the event should not be departed from in this case. The court found that the delays were caused by the defendants' solicitors and not the defendants themselves. The court held that the defendants were not responsible for the actions of their solicitors and therefore should not be penalised with costs. The court dismissed the plaintiff's motion and ordered that each party bear their own costs.

Orders