TLI4801
Assignment 1
Semester 1
Due 16 March 2026
, TLI4801 ASSIGNMENT 1 SEMESTER 1 DUE 16 MARCH 2026
QUESTION 1
(a) Discuss whether it is appropriate for Mr XT to use an action or application
procedure.
Q: Is it appropriate for Mr XT to use an action or application procedure?
A: It is appropriate for Mr XT to use an action procedure and not an application
procedure.
An action procedure is used where there is a material dispute of fact that can only
be resolved through the leading of oral evidence at trial, including examination and
cross-examination of witnesses. In contrast, an application procedure is generally
suitable where the facts are common cause or can be decided on affidavit evidence
alone (Erasmus, Superior Court Practice; Herbstein & Van Winsen).
In the present matter, the claim concerns arrear rental arising from a lease agreement.
The matter is defended, and there is already a dispute between the parties.
Furthermore, Ms Best has failed to disclose certain documents during discovery, which
indicates ongoing factual disputes relevant to trial preparation.
Because the matter involves:
• A contractual dispute
• A defended action
• Possible factual disputes regarding rental payments and lease obligations
the correct and appropriate procedure is an action procedure, instituted by way of
summons in the High Court.
Mr XT was therefore correct to proceed by way of action proceedings.
Assignment 1
Semester 1
Due 16 March 2026
, TLI4801 ASSIGNMENT 1 SEMESTER 1 DUE 16 MARCH 2026
QUESTION 1
(a) Discuss whether it is appropriate for Mr XT to use an action or application
procedure.
Q: Is it appropriate for Mr XT to use an action or application procedure?
A: It is appropriate for Mr XT to use an action procedure and not an application
procedure.
An action procedure is used where there is a material dispute of fact that can only
be resolved through the leading of oral evidence at trial, including examination and
cross-examination of witnesses. In contrast, an application procedure is generally
suitable where the facts are common cause or can be decided on affidavit evidence
alone (Erasmus, Superior Court Practice; Herbstein & Van Winsen).
In the present matter, the claim concerns arrear rental arising from a lease agreement.
The matter is defended, and there is already a dispute between the parties.
Furthermore, Ms Best has failed to disclose certain documents during discovery, which
indicates ongoing factual disputes relevant to trial preparation.
Because the matter involves:
• A contractual dispute
• A defended action
• Possible factual disputes regarding rental payments and lease obligations
the correct and appropriate procedure is an action procedure, instituted by way of
summons in the High Court.
Mr XT was therefore correct to proceed by way of action proceedings.
