(Re: Daniels) Krobar Investments Pty Ltd v Wallaby Grip (BAE) Pty Ltd (In Liquidation)

[2005] NSWDDT 54

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re: Daniels) Krobar Investments Pty Ltd v Wallaby Grip (BAE) Pty Ltd (In Liquidation) [2005] NSWDDT 54
PARTIES:	(Re Daniels) Krobar Investments Pty Ltd (Formerly Krop Pty Ltd) Amaca Pty Limited (Settled 24/1/05) Wallaby Grip (BAE) Pty Ltd (In Liquidation)
MATTER NUMBER(S):	452 of 2003/3
JUDGMENT OF:	Duck J at 1
:-
DATES OF HEARING:	2 September 2005
EX TEMPORE JUDGMENT DATE:	09/02/2005
LEGAL REPRESENTATIVES:	FOR CROSS CLAIMANT: Mr D Toomey instructed by Hicksons FOR CROSS DEFENDANT: Mr D G Russell, QC instructed by the second cross defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number DDT452 of 2003/3

(Re: David Charles Clifford Daniels)(Settled 24/08/2004)
C.C.: Krobar Investments Pty Ltd
(Formerly Krop Pty Ltd)

v
C.D.: Amaca Pty Ltd (Settled 24/01/2005)
C.D.: Wallaby Grip (BAE) Pty Ltd (In Liquidation)
2 September 2005

DUCK J

RULING

1. The Court has before it an application which is expressed to be an application to strike out the defence of the second cross-defendant because it is said that the cross-defendant has wrongly refused to supply answers to some interrogatories which had been administered. Limited answers were provided on 16 August 2005. On the same day the solicitor for the cross-claimant prepared a faxed letter which was in fact sent the next day declaring a hostile intention about the commencement of interlocutory proceedings to compel answers to the interrogatories. The motion thus filed, which is the one now before me, was to be heard on 19 August. It seems to me that for a case which had not yet been set down things were moving at quite a pace.

2. The matter was mentioned again on 22 August 2005 and eventually set down for hearing today. In the meantime the second cross-defendant had reconsidered its position and furnished some further answers to interrogatories which removed the main problem then existing. What is now left is an argument about the costs of the motion.

3. I think it may be fairly said that the motion was filed very quickly and as has been submitted gave little or no time for the second cross-defendant to reconsider its position. On the other hand, as has been demonstrated, the cross-claimant was entitled to proper answers to the interrogatories it had administered. There remained to be determined in the proceedings issues relating to the entitlement of the cross-claimant to succeed at all. I believe it is not necessary to describe in detail those issues but they appear on their face to be real issues.

4. I think the best way of disposing of today's proceedings is to order that the costs of the motion be costs in the cause. If the cross-claimants demonstrates an entitlement to succeed ultimately then included among its costs will be the costs of this motion. If it fails then the costs of the motion will not be recovered.

Mr D Toomey instructed by Hicksons appeared for the cross claimant

Mr D G Russell, QC instructed by Middletons appeared for the second cross defendant

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