Bird v Ford - [2013] NSWCA 323

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bird v Ford [2013] NSWCA 323
Hearing dates: 23 September 2013
Decision date: 23 September 2013
Before: Tobias AJA
Decision:
1. Dismiss the applicant's notice of motion filed on 16 August 2013 other than para 1 thereof.
2. Order that the applicant is to pay Ms Bird's costs of the notice of motion as and from 8 September 2013.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - security for costs - costs of appeal - no special circumstances
Legislation Cited:
Family Law Act 1975 (Cth)
Uniform Civil Procedure Rules rr 51.4(3), 51.50
Cases Cited: Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Marks-Isaacs v Fowler & Ors [2005] NSWCA 37
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Category: Interlocutory applications
Parties: Vrede Jane Bird (Appellant)
David Clifton Ford (First Respondent)
Gary Cedric Pritchard (Second Respondent)
Representation: Counsel:
Mr M Langenheim (Appellant)
Mr G P Craddock SC (Respondents)
Solicitors:
John Stonham & Co Lawyers (Appellant)
Mullane & Lindsay Solicitors (Respondents)

File Number(s): 2013/125008
Decision under appeal

Citation:

[2013] NSWSC 264

Date of Decision:

2013-03-28 00:00:00

Before:

Schmidt J

File Number(s):

2010/232539

Judgment

TOBIAS AJA: On 28 March 2013, Schmidt J entered judgment with costs in favour of the defendant, the present applicant, the principal of a firm of solicitors, in relation to proceedings instituted against him by the present respondent, Vrede Jane Bird (Ms Bird), and her husband, Gordon Philip Bird (Mr Bird), claiming negligence in relation to advice provided by the applicant relating to the expulsion of their son from his school in March 2007. On 28 June 2013, Ms Bird filed a notice of appeal against her Honour's orders in which she asserted ten appeal grounds.

Subsequent to the filing of the notice of appeal, the applicant's solicitor wrote to the solicitor for Ms Bird seeking security for his costs of the appeal. Ms Bird's solicitors responded to that request by indicating that they had been instructed that Ms Bird would resist any application for security. Accordingly, she declined to provide, as requested, a detailed outline of her current financial position including her assets and liabilities. There was also some correspondence between the solicitors for the parties relating to the quantum of costs the subject of the order made by Schmidt J that Mr and Mrs Bird pay the applicant's costs of the proceedings as agreed or assessed. Unfortunately the parties have been unable to agree on that amount.

Given the indication by Ms Bird that…

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 Bird v Ford

Details

AGLC: Bird v Ford [2013] NSWCA 323
Case: [2013] NSWCA 323
Decision Date: 23 September 2013

CaseChat Overview and Summary

The applicant, Mr Ford, sought to set aside a default judgment entered against him in favour of the respondent, Ms Bird. The application was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether there were sufficient grounds to set aside the default judgment. This involved considering whether the applicant had demonstrated a meritorious defence to the claim and whether there were any special circumstances justifying the setting aside of the judgment, particularly given the delay in bringing the application.

Tobias AJA dismissed the applicant's notice of motion, with the exception of one paragraph, and ordered the applicant to pay the respondent's costs of the motion from a specified date. The decision implies that the applicant failed to establish the necessary grounds for setting aside the default judgment, likely due to a lack of a meritorious defence or the absence of special circumstances to excuse the delay.

Orders

Orders of the court

1. Dismiss the applicant's notice of motion filed on 16 August 2013 other than para 1 thereof.

2. Order that the applicant is to pay Ms Bird's costs of the notice of motion as and from 8 September 2013.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bird v Ford [2013] NSWCA 323
Hearing dates:	23 September 2013
Decision date:	23 September 2013
Before:	Tobias AJA
Decision:	1. Dismiss the applicant's notice of motion filed on 16 August 2013 other than para 1 thereof. 2. Order that the applicant is to pay Ms Bird's costs of the notice of motion as and from 8 September 2013. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - security for costs - costs of appeal - no special circumstances
Legislation Cited:	Family Law Act 1975 (Cth) Uniform Civil Procedure Rules rr 51.4(3), 51.50
Cases Cited:	Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Marks-Isaacs v Fowler & Ors [2005] NSWCA 37 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Category:	Interlocutory applications
Parties:	Vrede Jane Bird (Appellant) David Clifton Ford (First Respondent) Gary Cedric Pritchard (Second Respondent)
Representation:	Counsel: Mr M Langenheim (Appellant) Mr G P Craddock SC (Respondents) Solicitors: John Stonham & Co Lawyers (Appellant) Mullane & Lindsay Solicitors (Respondents)
File Number(s):	2013/125008
Decision under appeal	Citation: [2013] NSWSC 264 Date of Decision: 2013-03-28 00:00:00 Before: Schmidt J File Number(s): 2010/232539