Anz v Lamont

NEW SOUTH WALES SUPREME COURT

CITATION: ANZ v Lamont [2001] NSWSC 622

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): 50155/99

HEARING DATE{S): 20 July 2001

JUDGMENT DATE: 25/07/2001

PARTIES:
Australia and New Zealand Banking Group Limited v John Robert Lamont & Ors

JUDGMENT OF: Hunter J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Plaintiff/Respondent: P Dowdy
Fourth defendant/ Applicant: A J O'Brien

SOLICITORS:
Plaintiff/Respondent: Coudert Brothers
Fourth defendant/ Applicant: Hermann & Green

CATCHWORDS:
Practice & Procedure - summary judgment - whether given in absence of defendant within meaning of Pt 40 r 9(2)(b).

ACTS CITED:

DECISION:
Summary judgment given in absence of defendant.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

HUNTER J

WEDNESDAY 25 JULY 2001

50155/99 AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED -V- JOHN ROBERT LAMONT & ORS

REASONS FOR JUDGMENT

This is an application by the fourth defendant to set aside or stay the summary judgment against her of 24 May 2000 in the sum of $605,895.06. The judgment was entered on 7 June 2000. The application to set aside the judgment is by notice of motion filed 22 May 2001. The applicant’s affidavit in support of the application is that sworn 21 May 2001. Of her involvement in the proceedings it was her evidence that she could not recall whether she had been served with the summons. She said that she was not informed of any of the following matters relating to the proceedings:
“ * a hearing date being 19th May, 2000 had been allocated;
* orders had been made concerning the filing of Affidavits:
* those orders had not been complied with;
* an application was made on 19th May, 2000 to vacate the hearing date;
* a further hearing date being 24th May, 2000 was allocated by the Court;
* a further application to vacate the hearing date was made on that date;
* that summary judgement was entered against…[her] on 24th May, 2000
* an appeal had apparently been lodged against the failure to grant the adjournment in the form of a Holding Summons for Leave to Appeal.”
For reasons that follow, the balance of her affidavit has no immediate relevance.
The affidavits relied upon in opposition to the application are those of Michael Thomas Rowe, sworn respectively 18 and 19 July 2001. In the first of those he deposed to the following sequence of events culminating in the summary judgment and of the events immediately following it:
“3.On 4 February 2000 the Summons was returnable before Mr Justice Rolfe when Mr CJ Stevens QC appeared on behalf of the First to Fourth Defendants inclusive.
4.Annexed hereto and marked with the letter “B” is a copy of the Short Minutes of Order made on 4 February 2000 providing for the Defendants to file any Defence and/or Cross Claim by 25 February 2000. The matter was stood over to 10 March 2000.
5.No Defences were filed by the First to Fourth Defendants and on 10 March 2000 the matter was back before Mr Justice Hunter when Mr CJ Stevens QC again appeared on behalf of the First to Fourth Defendants and there was an extension of time for the filing and serving of the Defence to 23 March 2000, the First to Fourth Defendants were ordered to pay the Plaintiff’s costs of the day and the matter was relisted on 24 March 2000.
…
7.Annexed hereto and marked with the letter “D” is a copy of the Defence of the First to Fourth Defendants filed in Court on 24 March 2001.
8.On 24 March 2001 the matter was stood over for further directions to 31 March 2000.
9.The matter was again before Mr Justice Hunter on 31 March 2000 when Mr McManus of Counsel appeared on behalf of the First to Fourth Defendants. Annexed hereto and marked with the letter “E” is a copy of the Short Minutes of Order of 31 March 2000 when it was noted that the matter was to be relisted on 19 May 2000 principally for the determination of the Plaintiff’s Notice of Motion.
10.Annexed hereto and marked with the letter “F” is a copy of the Plaintiff’s Notice of Motion for summary judgment filed 12 April 2001. The Bank’s Motion for summary judgment was served on the First to Fourth Defendant (sic) solicitor on 12 April 2000.
11.The matter was again before the Court on 19 May 2000, when the Plaintiff sought to proceed on its motion for summary judgment. The First to Fourth Defendants sought an adjournment. Annexed hereto and marked with the letter “G” is a copy of a judgment of Mr Justice Rolfe dated 19 May 2000. Mr Justice Rolfe stood the Plaintiff’s Motion for summary judgment over for hearing to Wednesday, 24 May 2000.
…
14. … when Mr Clyne of Counsel appeared on behalf of the First to Fourth Defendants on the morning of 24 May 2000 before Mr Justice Einstein Mr Clyne advised the Court that he was only instructed to appear on an adjournment application and that he was not instructed otherwise with respect to the Bank’s application for summary judgment.
15.I am advised that when Mr Justice Einstein refused any further adjournment of the Bank’s application, Mr Clyne of Counsel indicated that he would not be appearing that afternoon on the Bank’s application for summary judgment.
16.I am further advised that the hearing of the application on the afternoon of 24 May 2000 before Mr Justice Einstein took approximately half an hour with his Honour considering the affidavit evidence relied upon by the Bank in support of its application and then delivering a short judgment.
…
19.I have made numerous enquiries and searches for a transcript of the judgments of Mr Justice Einstein of 24 May 2000, both refusing the adjournment application of that date and the judgment entering summary judgment for the Bank but to no avail. Neither his Honour’s Associate nor the Court file, nor the Transcript Services are able to provide any copies thereof.”
In his second affidavit, Mr Rowe evidenced the letter to the defendants’ solicitor of 24 May 2000 from counsel who appeared on behalf of the defendants in the proceedings that day. The letter was in the following terms:
“I confirm my appearance on behalf of the 1st to 4th Defendants in this matter listed before Justice Einstein in the Supreme Court today. Mr Dowdy, Counsel appeared on behalf of the Plaintiff and Mr Hugh Scott, Solicitor, appeared on behalf of the 5th Defendant.
In accordance with your instructions I made the application for adjournment which was opposed. I filed in court the affidavit of my instructing solicitor sworn yesterday which was supplemented with oral submissions regarding the reasons for the adjournment, namely, that Mr Lamont who was present last Friday in court is now in Vanuatu and the further defence of a Constitutional nature which the Defendants propose to raise in the near future.
You will recall that His Honour spent some considerable time outlining the chronology of these proceedings since the filing of the Plaintiff’s Summons on 15 December last. Unfortunately, I was not aware of the significant history of this matter nor was I aware that none of the Defendants had filed any affidavit material until I was informed by His Honour.
In any event, you will note that His Honour stated that the Defendants had had ample time in which to file any affidavits in reply and refused the application for adjournment. His Honour subsequently stood the matter over to 2.00p.m.
I confirm my instructions today were to make application for an adjournment only and not to proceed to argue this case on its merits. Accordingly, His Honour excused me from appearing at 2.00 p.m today.
… ”
The respondent has taken a point that it has described as a ‘preliminary point’ which is particularised in counsel’s written submissions in the following terms:
“3.The short preliminary point for determination is whether it is competent for a Defendant who has appeared at the hearing of an application for summary judgment by her Counsel and has sought and argued for an adjournment thereof, which application is refused, and who then absents herself from the further hearing of the summary judgment application, to then have another Judge review the granting of summary judgment under Part 40.9 of the Supreme Court Rules or rather, is required to appeal either by leave or as of right to the Court of Appeal.”
The parties have agreed that I should determine that issue. The only basis upon which the application is made to set aside the summary judgment is that provided for in Pt 40 r 9(2)(b). Pt 40 r 9 is in the following terms:
“[40.9] Setting aside or varying judgment or order
9 (1)The Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.
(2) The Court may set aside or vary a judgment—
(a)where the judgment has been entered pursuant to Part 17 (which relates to default judgment); or
(b)where the judgment has been entered after judgment has been given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the judgment.
(c)where the judgment has been entered in proceedings for possession of land after judgement has been given in the absence of a person and the Court decides to make an order that the person be added as a defendant.
(3) The Court may, on terms, set aside or vary an order—
(a)where the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b)where notice of motion for the setting aside or variation is filed before entry of the order.
(4)In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5)Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order.”
It has not been argued that the applicant is entitled to have the summary judgment set aside or stayed in the exercise of any inherent power or other power than that conferred by r 9.
In those circumstances the preliminary point is really a question of fact whether the circumstances as deposed to by Mr Rowe require a finding that the judgment was entered in the presence of the applicant, regardless of whether the applicant was ignorant of the events surrounding the entry of judgment on 24 May 2000, as deposed to in her affidavit of 21May 2001.
The position of the bank is expressed in the written submissions of counsel as follows:
“12.The Bank submits that judgment was not given “in the absence of a party” to this matter. The Bank submits that Part 40 Rule 9 (2)(b) cannot reasonably be meant to apply to a position where a party deliberately elects to refrain from further participation in the hearing and leaves the Court after she has, through her Counsel, unsuccessfully sought an adjournment from the presiding Judge of that summary judgment application.”
Neither party has been able to furnish me with any authority directly in point.
In my view, the motion for summary judgment was heard and determined in the absence of the applicant. It is not in dispute that counsel appeared for the defendants on 24 May 2000 to seek an adjournment of the motion for summary judgment and that he retired from the proceedings once that adjournment was refused. The motion was then stood down for hearing later on 24 May 2000, when there was no appearance by the defendants.
In those circumstances, I fail to see how it may be said that the summary judgment was given in the presence of the defendants, who, on the face of it, had deliberately absented themselves from the hearing. While such a course of conduct may, in the absence of any other relevant circumstance, disentitle such a defendant from obtaining relief pursuant to Pt 40 r 9, that is a distinctly different question from that raised by the ‘preliminary point’. The respondent has confined itself to the very narrow proposition that the appearance of counsel on the application for an adjournment on 24 May 2000 compelled a finding that the hearing of the motion for summary judgment later that day was made in the presence of the defendant.
It is not necessary for me to address the evidence of the applicant to the effect that she was completely unaware of the events of 24 May 2000 and, for that matter, of the procedural matters leading up to the motion for summary judgment.
In some respects I think the agreement of the parties to argue this ‘preliminary point’ independently of the other issues raised on this application is unsatisfactory. It still remains to be considered whether the applicant deliberately absented herself from the hearing of the motion for summary judgment, as part of the general question whether the Court’s discretion should be exercised in her favour in setting aside the summary judgment against her: notwithstanding the delay in bringing this application.
I reserve the question of costs and stand the motion over to 3 August 2001 for further hearing.
°°O°°

LAST UPDATED: 22/10/2001

[2001] NSWSC 622

25 July 2001