TLI4801
Assignment 1
Semester 1
Due 16 March 2026
, QUESTION 1
(a) Is it appropriate for Mr XT to use an action or application procedure?
It is appropriate for Mr XT to use an action procedure rather than an application
procedure.
An action procedure is used where there is a dispute of fact that cannot be resolved
on affidavit, and where oral evidence may be required at trial (Erasmus, Superior Court
Practice, 2023). In this matter, the claim is for arrear rental arising from a lease
agreement. Ms Sue Best has defended the action, which already indicates that
material facts are in dispute, such as the amount owing, compliance with the lease, or
possible defences like set-off or cancellation.
By contrast, an application procedure is generally used where facts are common
cause and the matter can be decided on affidavits alone, for example liquidated debts
where no defence is anticipated (Harms, 2019).
Given that:
• The matter is defended
• The parties are preparing for trial
• Discovery disputes have arisen under Rule 35
the use of an action procedure is correct and procedurally appropriate.
Conclusion: Mr XT correctly proceeded by way of action, as the dispute involves
factual issues requiring trial proceedings.
Assignment 1
Semester 1
Due 16 March 2026
, QUESTION 1
(a) Is it appropriate for Mr XT to use an action or application procedure?
It is appropriate for Mr XT to use an action procedure rather than an application
procedure.
An action procedure is used where there is a dispute of fact that cannot be resolved
on affidavit, and where oral evidence may be required at trial (Erasmus, Superior Court
Practice, 2023). In this matter, the claim is for arrear rental arising from a lease
agreement. Ms Sue Best has defended the action, which already indicates that
material facts are in dispute, such as the amount owing, compliance with the lease, or
possible defences like set-off or cancellation.
By contrast, an application procedure is generally used where facts are common
cause and the matter can be decided on affidavits alone, for example liquidated debts
where no defence is anticipated (Harms, 2019).
Given that:
• The matter is defended
• The parties are preparing for trial
• Discovery disputes have arisen under Rule 35
the use of an action procedure is correct and procedurally appropriate.
Conclusion: Mr XT correctly proceeded by way of action, as the dispute involves
factual issues requiring trial proceedings.
