Interim applications

Question 1

What applications can bring a claim to an end and who can apply? (3)

Answer 1

1. discontinuance - C
2. summary judgement - both
3. strike out - both

Question 2

Is court permission needed for discontinuance application?

Answer 2

No. Unless exceptional circumstances such as C has already received a remedy

Question 3

What is the test for summary judgment? (2)

Answer 3

1. no real prospect of success; and
2. no other compelling reason why the case should be disposed at trial

Question 4

What happens if the whole case is struck out?

Answer 4

file request at court to enter judgment

Question 5

What are the grounds for strike out? (3)

Answer 5

1. SOC discloses no reasonable ground for bringing/defending claim;
2. SOC is an abuse of court process; or
3. failure to comply with rule, PD, court order e.g. late service

Question 6

What applications can be used to defend an early end to a claim? Who can bring it (2)

Answer 6

1. setting aside default judgement - D or court
2. relief from sanctions - both

Question 7

When MUST the court set aside a default judgment?

Answer 7

It was wrongly entered

Question 8

When MAY the court set aside a default judgment? (2)

Answer 8

i. D has a real prospect of successfully defending the claim

ii. some other good reason

Question 9

What are 2 important considerations for the court when deciding a relief for sanctions application? Name cases to back up

Answer 9

1. delay of trial/future hearing date (Dentons)
2. efficient and proportionate costs (Decadent Vapours)

Question 10

What is the test for relief from sanctions? (3)

Answer 10

1. if neither serious nor significant, relief should be granted
2. if serious or significant, consider reason for default
3. the court should evaluate the whole circumstances of the case

Question 11

What are the 2 interim applications related to payments? Who can bring it?

Answer 11

1. security for costs - D
2. interim payment - C

Question 12

What is the test for interim injunction? Who can bring the application?

Answer 12

By claimant

The test:

1. serious question to be tried
2. damages not adequate remedy
3. balance of convenience

Question 13

What are further 3 considerations for an application for interim injunction?

Answer 13

1. applicant must offer cross undertaking
2. must be urgent or in IOJ to make application before claim is issued + C must undertake to issue CF asap
3. if made w/o notice must give full and frank disclosure as to law and fact

Question 14

What is the test for interim payment?

Answer 14

1. D has admitted liability to pay a sum;
2. C has obtained judgment against D for a sum to be assessed; or
3. if claim went to trial, C would obtain judgment for a substantial sum

Question 15

What is the test for security for costs? What are the conditions for stage 2? (3)

Answer 15

1. having regard to all circumstances in the case, it is just to make an order
2. One or more prescribed conditions are met:

i. resident OOJ

ii. C is a company and there is reason to believe that they will be unable to pay

iii. C has taken steps in relation to their assets which would make enforcement difficult