CIV3701 ASSIGNMENT 1 2021
, 1
CIV 3701
SEMESTER 1 AND 2
2021
ASSINGMENT 1
QUESTION 1
a. When legislation or the rules of court neither prescribe nor prohibit the use of
application proceedings, the final test to apply is whether there is a material dispute
of fact. If there is a material dispute of fact (or can be reasonably anticipated), the
use of application proceedings is inappropriate and will normally be penalized by
way of an adverse costs order.
In the present matter, use of the application procedure is clearly inappropriate, as
it stands to reason that a breach of contract case will involve a material dispute of
fact. Since such a dispute can only be resolved by hearing oral evidence,
summons proceedings will be appropriate.
, 1
CIV 3701
SEMESTER 1 AND 2
2021
ASSINGMENT 1
QUESTION 1
a. When legislation or the rules of court neither prescribe nor prohibit the use of
application proceedings, the final test to apply is whether there is a material dispute
of fact. If there is a material dispute of fact (or can be reasonably anticipated), the
use of application proceedings is inappropriate and will normally be penalized by
way of an adverse costs order.
In the present matter, use of the application procedure is clearly inappropriate, as
it stands to reason that a breach of contract case will involve a material dispute of
fact. Since such a dispute can only be resolved by hearing oral evidence,
summons proceedings will be appropriate.
