Aukuso v Tahan (No 2)

The appellant, Aukuso, sought to set aside a judgment entered against them in favour of the respondent, Tahan. The dispute concerned an application to set aside an order made by the court. The appeal was heard by Macfarlan and Meagher JJA, and Simpson AJA.

The primary legal issues before the court were whether it had jurisdiction to set aside or vary an order after the expiry of the 14-day time limit prescribed by rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), and if so, whether it was appropriate to dispense with the rule prescribing the form of notice for such a motion. A related issue concerned the appellant's entitlement to costs, given that an earlier offer of compromise made by the appellant was not accepted but the subsequent outcome was substantially similar to that offer.

The court determined that it did not have jurisdiction to set aside or vary the order as the application was filed outside the 14-day time limit stipulated by rule 36.16. The court found that the applicant had not notified the court of the motion within the prescribed time limit, and therefore, it was not appropriate to dispense with the rule requiring the form of notice for the motion. Regarding costs, the court noted that the prima facie rule regarding costs was not displaced by the fact that the outcome was similar to the appellant's offer of compromise, particularly in light of the failure of the application to set aside the judgment.

Consequently, the court dismissed the Notice of Motion filed by the appellant on 20 June 2018 and ordered the appellant to pay the respondent’s costs of that motion.