National Australia Bank Ltd v Battersby
[2016] NSWSC 289
•18 March 2016
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Ltd v Battersby [2016] NSWSC 289 Hearing dates: 18 March 2016 Date of orders: 18 March 2016 Decision date: 18 March 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) The Defendants are to serve their evidence by 29 March 2016.
(2) Except with the leave of the Court, no evidence is to be relied upon by the Defendants at the hearing on 26 May if that evidence is served after 29 March.
(3) The Plaintiff is to serve any evidence in reply by 26 April.
(4) Liberty to apply on two days' notice.Catchwords: PROCEDURE – failure to comply with directions on two occasions for service of evidence – guillotine order imposed Category: Principal judgment Parties: National Australia Bank Ltd (Plaintiff)
Stephen Henry Battersby (First Defendant)
Diana Marie Battersby (Second Defendant)Representation: Counsel:
Solicitors:
A Pong (Plaintiff)
No appearance (First Defendant)
T L Hollo (Second Defendant)
Kemp Strang (Plaintiff)
Unrepresented (First Defendant)
Madgwicks (Second Defendant)
File Number(s): 2012/190311
Judgment
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These proceedings have been before me a number of times for case management. The First and Second Defendants have appeared unrepresented before today and the First Defendant is still unrepresented.
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On 26 October 2015 I ordered, amongst other things, that the Defendants were to serve their evidence by 27 November 2015. I stood the proceedings over to 30 November.
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When the proceedings were before me on that day, it appeared that the Defendants had not served their evidence in compliance with that direction. I also gave leave to the parties to approach the Listing Manager for a hearing date for the Plaintiff's Notice of Motion dated 21 October 2015, together with an application by the Second Defendant to file a cross-claim in the form identified and initialled by me at the time. I extended the time for the Defendants to serve their evidence to 22 January 2016.
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The matter has been re-listed today at the Plaintiff's behest because the evidence of the Defendants has still not been served.
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This morning Mr T Hollo of counsel appeared for the Second Defendant. He indicated that he and his instructing solicitors had just recently been instructed in the matter on behalf of the Second Defendant.
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The Plaintiff and the Second Defendant have agreed on Short Minutes of Order which is to the effect that the Second Defendant's evidence is to be served by 29 March and, if it is not, that the Second Defendant may not rely on that evidence except with leave of the Court.
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The First Defendant has not appeared this morning.
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In my opinion the same orders should be made against the First Defendant. There has been no explanation at any stage provided why the evidence was not served in accordance with directions twice made.
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Therefore, between the Plaintiff and the Second Defendant these orders are made by consent and they are made by me against the First Defendant.
The Defendants are to serve their evidence by 29 March 2016.
Except with the leave of the Court, no evidence is to be relied upon by the Defendants at the hearing on 26 May if that evidence is served after 29 March.
The Plaintiff is to serve any evidence in reply by 26 April.
Liberty to apply on two days' notice.
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Decision last updated: 18 March 2016
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