Batiste v Gilmour-Latham - [2001] NSWCA 392

CITATION: Batiste v Gilmour-Latham [2001] NSWCA 392

FILE NUMBER(S): CA 40458/01

HEARING DATE(S): 31 October 2001

JUDGMENT DATE:
31 October 2001

PARTIES :

Donna Batiste - Appellant
Susan Gilmour-Latham - Respondent

JUDGMENT OF: Giles JA at 1; Heydon JA at 26; Hodgson JA at 27

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 3543/99

LOWER COURT
JUDICIAL OFFICER : Bowden ADCJ (30/3/01); Cooper DCJ (1/6/01 & 21/6/01)

COUNSEL: R G McHugh - Appellant
T S Murphy - Respondent

SOLICITORS: Horowitz & Bilinsky - Appellant
Andreones - Respondent

CATCHWORDS: JUDGMENT - setting aside on terms - whether can be a term that defendant provide security for amount claimed - whether on facts the amount ordered as security was appropriate. ND

CASES CITED:
Conners v Acheron Pty Ltd (No 2) (1996) 1 Qd R 243;
M V Yorke Motors v Edwards (1982) 1 All ER 1024.

DECISION: In relation to the order of Bowden ADCJ leave to appeal is refused; in relation to the orders of Cooper DCJ leave to appeal is granted, but the appeal is dismissed.

CA 40458/01
DC 35423/99

GILES JA
HEYDON JA
HODGSON JA

Wednesday 31 October 2001

DONNA BATISTE v SUSAN GILMOUR-LATHAM

Judgment

1 GILES JA: This is an application for leave to appeal against the decisions of Bowden ADCJ given on 30 March 2001 and Cooper DCJ given on 1 June 2001 and 21 June 2001, and in the case of the first of these decisions for an extension of the time within which to seek leave to appeal. The application has been heard as if an appeal, so that if leave be granted a further hearing will be unnecessary, and the submissions have therefore addressed the substance as well as matters relevant to leave to appeal.

2 The claimant properly concentrated on the key issue arising in the application, which I will identify shortly, but some background is necessary.

3 At some time in 1999 the opponent brought proceedings against the claimant to recover money which she said had been lent to the claimant. According to an amended statement of liquidated claim filed in May 1999 the claim was for three amounts of money lent in 1991 and four amounts of money lent in 1996, on various occasions in each of those years. It was alleged that the total amount lent was some $179,000 of which nearly $70,000 had not been repaid, and the claim was to the $70,000 plus interest. I have rounded the figures off and will continue to do so when I refer to figures hereafter.

4 A defence filed by the claimant in March 2000 denied some of the loans, admitted other of the loans and pleaded the statute of limitations in relation to the 1991 loans.

5 A further amended statement of liquidated claim was filed in November 2000 which altered the amounts involved slightly, but not in a way which need be recounted now, and in the manner it was framed at least foreshadowed a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWCA 392
Decision Date: 31 October 2001

CaseChat Overview and Summary

The parties in this matter were Batiste (the applicant) and Gilmour-Latham (the respondent). The dispute concerned an application to set aside a default judgment. The case came before the Court of Appeal of New South Wales, comprising Giles, Heydon and Hodgson JJA.

The primary legal issues before the Court of Appeal were whether it was permissible for a court to order a defendant to provide security for the amount claimed as a term for setting aside a default judgment, and if so, whether the amount of security ordered in this particular instance was appropriate.

The Court of Appeal considered the principles governing the setting aside of default judgments, which generally require a defendant to show a meritorious defence and that the application is made promptly. The Court then addressed the question of whether security could be ordered as a condition. While not explicitly detailed in the provided text, the court's decision implies that such a condition is permissible in certain circumstances, and the focus then shifted to the appropriateness of the specific amount of security ordered.

In relation to the order made by Bowden ADCJ, leave to appeal was refused. However, in relation to the orders made by Cooper DCJ, leave to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

In relation to the order of Bowden ADCJ leave to appeal is refused; in relation to the orders of Cooper DCJ leave to appeal is granted, but the appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Batiste v Gilmour-Latham [2001] NSWCA 392
FILE NUMBER(S):	CA 40458/01
HEARING DATE(S):	31 October 2001
JUDGMENT DATE:	31 October 2001
PARTIES :	Donna Batiste - Appellant Susan Gilmour-Latham - Respondent
JUDGMENT OF:	Giles JA at 1; Heydon JA at 26; Hodgson JA at 27

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 3543/99
LOWER COURT JUDICIAL OFFICER :	Bowden ADCJ (30/3/01); Cooper DCJ (1/6/01 & 21/6/01)

COUNSEL:	R G McHugh - Appellant T S Murphy - Respondent
SOLICITORS:	Horowitz & Bilinsky - Appellant Andreones - Respondent
CATCHWORDS:	JUDGMENT - setting aside on terms - whether can be a term that defendant provide security for amount claimed - whether on facts the amount ordered as security was appropriate. ND
CASES CITED:	Conners v Acheron Pty Ltd (No 2) (1996) 1 Qd R 243; M V Yorke Motors v Edwards (1982) 1 All ER 1024.
DECISION:	In relation to the order of Bowden ADCJ leave to appeal is refused; in relation to the orders of Cooper DCJ leave to appeal is granted, but the appeal is dismissed.