Agricultural & Rural Finance Pty Ltd v Kirk

Agricultural & Rural Finance Pty Ltd (the appellant) sought to appeal orders made by Einstein J in the Supreme Court of New South Wales. The dispute concerned applications to set aside earlier orders that had themselves set aside the service of a summons. The primary judgment, which was the subject of the applications to set aside, was alleged by the respondent to contain errors and grounds of prejudice, though the respondent no longer relied on all of these grounds.

The Court of Appeal was required to determine whether the factors to be considered when exercising the discretion under Uniform Civil Procedure Rules (UCPR) r 1.12 were applicable to the discretions conferred by UCPR rr 12.11 and 36.16. Specifically, the court considered the interplay between the rules governing the setting aside of service of summons and the broader rules concerning the setting aside and variation of judgments and orders, including relevant time limits.

The Court of Appeal reasoned that the discretion to set aside an order under r 1.12, which deals with setting aside service of summons, should be exercised by reference to the principles established in cases such as *Arthur Anderson Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq)*. This discretion is distinct from the discretion to set aside or vary a judgment or order under r 36.16, which is generally subject to a strict time limit of fourteen days unless the court orders otherwise. The court found that the applications before Einstein J were not properly brought under r 36.16, and that the grounds for setting aside the original service of the summons were not made out.

The appeal was allowed. The orders made by Einstein J on 18 February 2010 were set aside, and in their place, the Notices of Motion filed by the respondents were dismissed. The respondents were ordered to pay the appellant's costs of the Notices of Motion and the costs of the applications for leave to appeal and the appeal itself. Time was extended for the filing of the respondents' Amended Notice of Motion and Notice of Motion.