Pico Holdings Inc v Dominion Capital P/L

[2001] VSC 332

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6630 of 2001

PICO HOLDINGS INCORPORATED	Plaintiff
v
DOMINION CAPITAL PTY. LTD.	Defendant

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JUDGE:	BONGIORNO, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 AUGUST 2001
DATE OF RULING:	30 AUGUST 2001
CASE MAY BE CITED AS:	PICO HOLDINGS INC. v. DOMINION CAPITAL PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2001] VSC 332

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Practice and Procedure – Adjournment of application – Discretion to adjourn proceeding.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Pearce	Gilbert & Tobin
For the Defendant	Mr. J. Styring	Malleson Stephen Jaques

HIS HONOUR:

1. Mr Styring, for the defendant, has renewed his application to adjourn the remaining matters before the court to a date after 10 September 2001 and/or after the determination of an appeal his client proposes to launch in respect of my ruling this morning that it should not be permitted to withdraw its unconditional notice of appearance.

1. Initially I was attracted to the idea that the matter should be adjourned having regard to the fact that the defendant may (if I was wrong in my ruling this morning) have a defence to the application for summary judgment, based upon the plaintiff's breach of contract in bringing the proceeding in this court instead of in a court in the United States.

1. However, on reflection, it seems to me that having regard to the ruling which I have given, the situation at the moment is that the defendant is not entitled to rely upon that defence and the judgment summons should be determined without reference to it.  It does not go to the merits of the claim at all. 

1. Should the defendant be successful on any appeal it is permitted to pursue then the situation may be different.  I say "may" because it would not necessarily follow that leave to withdraw the notice of appearance would inevitably lead to the defendant being able to establish the matters to which I have referred as part of a defence.

1. Accordingly, I do not propose to grant the adjournment.  I shall now proceed to hear the judgment summons.

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