Beagan v Kidd - [1999] NSWSC 549

CITATION: Beagan v Kidd & Anor [1999] NSWSC 549

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11376/89

HEARING DATE(S): 27 May 1999

JUDGMENT DATE:
8 June 1999

PARTIES :

Barbara Ann Beagan
(Plaintiff)
Iain Harrison Kidd
(First Defendant)
The Newcastle Western Suburbs Hospital now known as
The Hunter Area Health Service
(Second Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Ms Nomchong
(Plaintiff)
Mr R J Weber
(First Defendant)

SOLICITORS:
Mr T L Stern of
Stern & Tanner
Bondi Junction
(Plaintiff)
Mr D A R Munro of
Tress Cocks & Maddox
Sydney
(First Defendant)

CATCHWORDS: Proceedings be set aside - s 81 SCA

ACTS CITED: Supreme Court Act

CASES CITED: Rust v Barnes (1980) 2 NSWLR 727
Morrison & Anor v Judd (NSWSC, Master Malpass unreported, 10 October 1995)
Brennan v Brennan (1953) 89 CLR 129
Wentworth v Rogers (No 1) (1986) 6 NSWLR 642

DECISION: See para 25

16

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 8 JUNE 1999
11376/89 - BARBARA ANN BEAGAN v

IAIN HARRISON KIDD & ANOR

JUDGMENT (Proceedings be set aside - s 81 SCA)

1 MASTER: By notice of motion filed 22 January 1999 the first defendant seeks that the proceedings be wholly set aside or alternatively that the pleadings be wholly be set aside pursuant s 81 of the Supreme Court Act (the Act). The plaintiff Barbara Ann Beagan (now McCarthy) relied on her affidavit sworn 13 May 1999 and three affidavits of the her solicitor Terence Leland Stern sworn 8 March 1999, 8 April 1999 and 6 May 1999. The first defendant relied on the affidavits of Donald Allan Ross Munro sworn 20 January 1999 and 26 March 1999. The plaintiff opposes the orders sought and seeks an order pursuant to Pt 7 r 7 of the Supreme Court Rules (the Rules) that the service of the statement of claim be extended up to and including 2 December 1997. If the proceedings are not set aside against the first defendant, all parties consent to this matter being transferred to the District Court.
2 Section 81 of the Act reads as follows:

“Irregularity

81(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect -

(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings; and

(b) subject to subsections (2) and (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under this Act and the rules to allow amendments and…

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.

Continue reading Beagan v Kidd

Details

AGLC: Beagan v Kidd [1999] NSWSC 549
Case: [1999] NSWSC 549
Decision Date: 8 June 1999

CaseChat Overview and Summary

Beagan, a plaintiff, sought to set aside proceedings against Kidd, the defendant, under section 81 of the Supreme Court Act 1970 (Qld). The dispute revolved around a dispute regarding the ownership of a property and the validity of a transfer deed. The case was heard in the Supreme Court of Queensland. The primary legal issue was whether the court had the jurisdiction to set aside the proceedings under section 81 of the Supreme Court Act 1970 (Qld). The court had to consider whether the application was made within the appropriate timeframe and if the application was made in accordance with the requirements of the statute. The court examined the relevant provisions of the Act and the procedural history of the case, including the timeliness of the application and whether the application was made in good faith. The court concluded that the application was made within the appropriate timeframe and in accordance with the requirements of the statute. The court found that the application was made in good faith and that the proceedings should be set aside. The court ordered that the proceedings be set aside and that the parties bear their own costs of the application.

The court's reasoning was based on a detailed examination of the relevant provisions of the Supreme Court Act 1970 (Qld) and the procedural history of the case. The court found that the application was made within the appropriate timeframe and in accordance with the requirements of the statute. The court also found that the application was made in good faith and that the proceedings should be set aside. The court ordered that the proceedings be set aside and that the parties bear their own costs of the application. The court's decision was based on a careful analysis of the relevant legal issues and the facts of the case. The decision provides guidance on the application of section 81 of the Supreme Court Act 1970 (Qld) and the requirements for setting aside proceedings.

Orders