Equuscorp Pty Ltd v Orazio
[2000] QCA 117
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- Equuscorp Pty Ltd v Orazio[2000] QCA 117
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Equuscorp Pty Ltd v Orazio[2000] QCA 117
Equuscorp Pty Ltd v Orazio[2000] QCA 117
COURT OF APPEAL
de JERSEY CJ
PINCUS JA
McPHERSON JA
Appeal No 11547 of 1999
EQUUSCORP PTY. LTD.
ACN 006 102 344 Appellant (Plaintiff)
v
ANTHONY RINO ORAZIO Respondent (Defendant)
BRISBANE
DATE 11/02/2000
JUDGMENT
THE CHIEF JUSTICE: This appeal challenges orders made by a Chamber Judge consequent upon deemed admissions following the delivery of notices to admit. The plaintiff failed to respond because of its solicitor's inadvertence. The learned Judge found that explanation not particularly meritorious. He went on, however, to add that although the plaintiff claimed a wish to dispute the allegations basing the deemed admissions, it had advanced no evidence contradicting them, as might have been expected as the plaintiff invited the Court's discretion, in applying for leave to withdraw the admissions.
Mr Wilson, who advanced excellent submissions before us this morning, has shown us what he puts forward as the best evidence in contradiction, referring to entries in the company's books of account, but they went nowhere towards establishing the necessary actual payments under the terms of the loan agreement.
It has not been established that the Judge's exercise of discretion in declining to allow the withdrawal of the admissions miscarried. Consequently this judgment should be affirmed and the application for a stay refused. We effectively heard the appeal without objection in response to the defendant's application that it be struck out. It would be pointless and unproductive that we should allow the appeal to remain alive at this stage.
I would allow the defendant's application and consequently order that the plaintiff's appeal be dismissed and I would in further consequence refuse the plaintiff's application for a stay in each case with costs to be assessed.
PINCUS JA: I agree.
McPHERSON JA: I also agree.
THE CHIEF JUSTICE: Those are the orders.
MR HEYWORTH-SMITH: Your Honour, may I raise another point. May there be liberty to apply in respect to costs for this reason. That there is a suspicion that Equuscorp may not be able to answer the costs order and if that is the case I would wish to place submissions before the Court by the solicitors for Equuscorp should pay those costs personally.
THE CHIEF JUSTICE: Well wouldn't you do that by a separate application in the proceedings?
MR HEYWORTH-SMITH: But provided the proceedings are still alive I can do it by separate application, yes.
THE CHIEF JUSTICE: I see what you mean. Liberty to apply further with relation to the issue of costs.
MR HEYWORTH-SMITH: Thank you, your Honour.
THE CHIEF JUSTICE: So the costs of all proceedings to this point have been dealt with by my reference to with costs to be assessed and then we have added another provision liberty to apply in response to Mr Heyworth-Smith's point.