Zeaiter v Reliance Financial Services Pty Ltd - [2007] NSWSC 929

CITATION: Zeaiter v Reliance Financial Services Pty Ltd [2007] NSWSC 929

HEARING DATE(S): 25 May 2007

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 25 May 2007

DECISION: Order that plaintiff file a verified statement of the nature of its case in respects in which Statement of Claim deficient.

CATCHWORDS: COSTS – Interlocutory costs order – whether should be assessable forthwith - PROCEDURE – Pleading – application to strike out – late application – liberal view taken of pleading

LEGISLATION CITED: (CTH) Trade Practices Act 1974 ss 51AA, 51AB, 51AC, 82, 87
(NSW) Contracts Review Act 1980 s 9
(NSW) Fair Trading Act 1987 ss 68, 72.
(NSW) Supreme Court Rules 1970 Pt 52A, r 9
(NSW) Uniform Civil Procedure Rules 2005 rr 15.10, 42.7

CASES CITED: Fiduciary Limited v Morningstar Research Pty Limited (2002) 55 NSWLR 1

PARTIES: Annette Theresa Zeaiter (plaintiff)
Reliance Financial Services Pty Ltd (first defendant)
Sam Peter Cassaniti (second defendant)

FILE NUMBER(S): SC 3801/06

COUNSEL: Mr A F Fernon (plaintiff)
Mr D A Allen (first defendant)

SOLICITORS: McCabe Terrill Lawyers Pty Ltd (plaintiff)
Hancocks Solicitors (first defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON

Friday, 25 May 2007

3801/06 Annette Therese Zeaiter v Reliance Financial Services Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: Before the Court are two Notices of Motion: the first originally was an application by the plaintiff for judgment but ultimately only a question of costs remains, and the second is an application by the defendant to strike out the Statement of Claim.

First Motion

2 The first motion was filed by the plaintiff Annette Therese Zeaiter on 17 May 2007 and claims, in substance, orders striking out the defendant’s Cross-Claim for want of prosecution, and default judgment on the Statement of Claim as a result of the defendant’s failure to file a Defence. Since that motion was filed, the default has been cured by the filing of a Defence, and so far as the allegation of want of prosecution is concerned – which depended essentially on the defendant’s failure to file further affidavits – the defendant/cross-claimant indicated that it intends to proceed to trial on the affidavits already filed in connection with the interlocutory application in the matter. In those circumstances, the plaintiff has pressed its motion only insofar as it seeks costs, seeking also an order that those costs may be assessed forthwith. The defendant does not seriously oppose an order that it pay the plaintiff’s costs of the motion, but opposes the order for assessment forthwith.

3 The circumstances in which the Court might order that an interlocutory costs order be assessed forthwith are not strictly constrained. (NSW) Uniform Civil Procedure Rules 2005, r 42.7 provides as follows:

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no…

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.

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Details

Case: [2007] NSWSC 929
Decision Date: 25 May 2007

CaseChat Overview and Summary

The case before the court involved a dispute between Zeaiter and Reliance Financial Services Pty Ltd. The dispute centred around an application by Reliance to strike out certain parts of Zeaiter's pleadings due to their late filing, and the subsequent costs incurred in the process. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues addressed by the court were whether the interlocutory costs order should be assessable immediately and the appropriate approach to take in considering a late application to strike out pleadings. The court had to balance the need to enforce procedural rules with the principle of treating pleadings liberally, especially in the context of a late application.

The court found that while the application to strike out was indeed late, the circumstances warranted a liberal approach. The court assessed the application on its merits, considering the overall fairness of the proceedings and the potential prejudice to the opposing party. The court emphasised that the procedural rules should not be applied rigidly if doing so would lead to an unjust outcome. In terms of costs, the court decided that the interlocutory costs order should not be assessed immediately, allowing for a more comprehensive review of the case's overall costs at a later stage.

The court's decision resulted in the late application to strike out being considered on its merits, and the interlocutory costs order not being assessed immediately. This approach allowed for a more balanced consideration of the procedural and substantive aspects of the case.

Orders