Banicic v Beach & Ors

[2008] VSCA 35

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Leave to defend on conditions
4. › Financial security as condition of leave to defend
5. › Whether dismissal of summary judgment application precludes imposition of conditions on leave to defend
6. › Whether r 22.06(1)(b) and (c) mutually exclusive
1. Practice and Procedure
2. › Summary judgment
3. › Leave to defend on conditions
4. › Onus on defendant to demonstrate financial condition renders defence impossible
5. › Whether sufficient basis disclosed to justify imposition of condition
1. Practice and Procedure
2. › Courts
3. › Power to vary orders before entry
4. › County Court as court of record
5. › Power to vary orders between pronouncement and formal entry into record
6. › County Court Act 1958 (Vic), s 35(2)
1. Practice and Procedure
2. › Summary judgment
3. › Verification of cause of action
4. › Whether requirements of r 22.03(1) met
5. › Sufficiency of affidavit material

Quick Take

Where a defendant is granted conditional leave to defend on the basis of providing financial security, the defendant bears the onus of demonstrating on cogent evidence that the condition will render the defence impossible. The provisions of r 22.06(1)(b) (refusal of summary judgment) and r 22.06(1)(c) (conditional leave to defend) are not mutually exclusive and may both be invoked in the same application.