Barron v NSW Trustee and Guardian

[2019] NSWSC 1343

Supreme Court

New South Wales

Medium Neutral Citation:

Barron v NSW Trustee and Guardian [2019] NSWSC 1343

Hearing dates:

3 October 2019

Date of orders:

03 October 2019

Decision date:

03 October 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) The orders as to professional costs entered on 8 August 2019 by the Court below are set aside.

 

(2) In lieu thereof, the defendant/applicant in the Court below to pay the costs of the plaintiff/respondent in the agreed sum of $3,300.00.

 

(3) Vary the default judgment entered in the Court below in case number 2013/234559 on 7 January 2014 in the sum of $38,048.32, by substituting the sum of $8,235.00 for the sum of $38,048.32.

 

(4) No order as to costs of the proceedings in this Court with the intention that the parties bear their own costs.

 (5) The Court notes the undertaking of the plaintiff in the proceedings in this Court not to make any further application to set aside the default judgment entered in the Court below in case number 2013/234559.

Catchwords:

PRACTICE AND PROCEDURE – appeal from Local Court resolved by consent – whether open to this Court to make orders under s 41 of Local Court Act 2007 (NSW) to finally dispose of proceedings in this Court and in Local Court – orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Local Court Act 2007 (NSW), s 41

Category:

Principal judgment

Parties:

Pamela Barron (Plaintiff)
NSW Trustee and Guardian as executor of the estate of the late Keith Middlemiss (Defendant)

Representation:

Counsel:
M Cowden (Plaintiff)
J Johnson (Defendant)

  Solicitors:
Attwood Marshall Lawyers (Plaintiff)
Proactive Legal Pty Ltd (Defendant)

File Number(s):

2019/277294

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

8 August 2019

Before:

Magistrate McIntyre

File Number(s):

2013/234559

Judgment – ex tempore

1. This matter comes before me as Duty Judge today to resolve an appeal brought by Pamela Barron against the New South Wales Trustee and Guardian (the Trustee) in respect of a notice of motion filed by Ms Barron to set aside a default judgment entered in favour of the Trustee, which was dismissed by the Local Court. In order to explain my reasons for making the orders as sought, I propose to set out a brief narrative of the factual background.

2. In July 2013, the Trustee brought proceedings against Ms Barron seeking repayment of an amount in the order of $38,048.32. On 7 January 2014, no defence having been filed to the statement of claim, the Trustee filed a notice of motion for default judgment. Default judgment was entered by the Local Court. Apparently, Ms Barron did not become aware of the default judgment until 12 March 2019 when the Trustee wrote to Ms Barron to seek payment. On 25 June 2019, Ms Barron filed a notice of motion in the Local Court to set aside the default judgment. On 8 August 2019, the Local Court dismissed her notice of motion with costs. On 5 September 2019, Ms Barron filed a summons in this Court seeking to appeal the orders made by the Local Court to refuse her application to set aside the default judgment. Since the filing of the summons, the parties have agreed to resolve the dispute between them.

3. I am informed by Ms Cowden, who appears on behalf of Ms Barron, and Mr Johnson, who appears on behalf of the Trustee, that the Trustee accepts that the amount of the default judgment should be reduced from $38,048.32 to $8,235. The costs in the Court below for which Ms Barron is liable are agreed at $3,300. The effect of my making the orders sought by both parties would be that the proceedings in this Court and in the Local Court would be resolved both as to the quantum of the judgment sum and as to the amount of the costs. The parties contend that I have power to make these orders under s 41 of the Local Court Act 2007 (NSW) and, in particular, s 41(1)(a), which empowers this Court to determine an appeal by varying the terms of the judgment or order. I note the very small amounts in question and s 56 of the Civil Procedure Act2005 (NSW) which provides that the overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

4. I am satisfied on the basis of what Ms Cowden and Mr Johnson have said that there are no longer any real issues in the proceedings and that the just, quick and cheap way of resolving them would be for me to exercise the power conferred on this Court by s 41(1)(a) of the Local Court Act by making orders by consent in terms of the document entitled “Consent Judgment” that has been provided to me by the parties.

5. Accordingly, I make orders in terms of paragraphs 1, 2, 3, and 4 of that document, and note the undertaking recorded in paragraph 5 being the undertaking of the plaintiff in the proceedings in this Court not to make any further application to set aside the default judgment entered in the Court below in case 2013/234559. I will sign and date that consent order and place it with the papers. These orders and notations are set out in full below.

Orders and notations

1. The orders as to professional costs entered on 8 August 2019 by the Court below are set aside.

2. In lieu thereof, the defendant/applicant in the Court below to pay the costs of the plaintiff/respondent in the agreed sum of $3,300.00.

3. Vary the default judgment entered in the Court below in case number 2013/234559 on 7 January 2014 in the sum of $38,048.32, by substituting the sum of $8,235.00 for the sum of $38,048.32.

4. No order as to costs of the proceedings in this Court with the intention that the parties bear their own costs.

5. The Court notes the undertaking of the plaintiff in the proceedings in this Court not to make any further application to set aside the default judgment entered in the Court below in case number 2013/234559.

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Decision last updated: 04 October 2019