Peninsula Balmain P/L v Abigroup Contractors P/L [2002] NSWCA 270

PRACTICE AND PROCEDURE - STAY OF PROCEEDINGS - INTERLOCUTORY APPLICATIONS - ABUSE OF PROCESS - Proceedings struck out of list for Plaintiff's default in complying with Court's directions - application to restore dismissed because default had not been rectified - Plaintiff makes second application to restore after default rectified - whether second application is an abuse of process - principles discussed - Nominal Defendant v Manning (2000) 50 NSWLR 139 explained and distinguished.  HELD:  As a general rule:

(i)       when proceedings have been struck out under Part 13 r.3 of the District Court Rules or stayed under Part 33 r.6 of the Supreme Court Rules an application to restore the proceedings or lift the stay should only be made when the Plaintiff's default has been cured;

(ii)      if an application is dismissed because the Plaintiff's default has not been cured, a second application made prior to the default being cured will usually be dismissed out of hand as an abuse of process because there will have been no relevant change of circumstance since the first application;

(iii)     a second application made after default has been cured cannot be regarded as an abuse of process because there will have been a change in the circumstance which led to the refusal of the first application;

(iv)     there may be exceptions to the general rule but, in reality, such cases are difficult to conceive and will necessarily occur very rarely.

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