Borowiak v Hobbs and 1Ors - [2006] NSWSC 1089

CITATION: BOROWIAK v HOBBS & 1Ors [2006] NSWSC 1089

HEARING DATE(S): 12/10/06

JUDGMENT DATE :
18 October 2006

JUDGMENT OF: Associate Justice Malpass

DECISION: The summons is dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS: Application to set aside default judgment - appeal from review by a Magistrate - power to set aside - unfettered discretion - to be exercised having regard to the particular facts of the case and the dictates of justice - guidance provided by other authority - default, delay and explanation - prejudice - overriding purpose - leave and onus.

LEGISLATION CITED: Civil Procedure Act 2005
Supreme Court Rules 1970
Uniform Civil Perocedure Rules 2005

CASES CITED: Cohen v McWilliam and Another (1995) 38 NSWLR 476
Davies v Pagett (1986) 70 ALR 793
Stollznow v Calvert [1980] 2 NSWLR 749
Suduk v Burton [1999] NSWSC 1277
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239

PARTIES: Gweneth BOROWIAK
Pamela HOBBS
Philip HOBBS

FILE NUMBER(S): SC 13087/06

COUNSEL: Mr J Sheller (Pl)
Mr B Glover (Defs)

SOLICITORS: William Roberts Lawyers (Pl)
Insight Litigation & Legal Services Pty Ltd (Solicitors) (Defs)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 80930/05

LOWER COURT JUDICIAL OFFICER : Stapleton LCM

LOWER COURT DATE OF DECISION: 31/5/06

LOWER COURT MEDIUM NEUTRAL CITATION: Pamela & Philip J HOBBS v Gweneth BOROWIAK

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

18 October 2006

13087/06 Gweneth BOROWIAK v Pamela HOBBS & 1 Ors

1 HIS HONOUR: Motor vehicles owned respectively by the defendants and the plaintiff were involved in a motor vehicle accident. It took place on 13 May 2005. There is no dispute that the collision was caused by the negligence of the plaintiff.

2 The plaintiff made a claim on her insurer (NRMA). Subsequently, her claim was met by the insurer. The defendants took steps to recover, inter alia, the repair costs to their vehicle (commencing with a letter of demand to the insurer, dated 11 August 2005, which received no response). The claim was in excess of $28,000.

3 The defendants commenced proceedings in the Local Court. Service of the process was effected prior to 5 September 2005. It was on that date that the process was brought to the attention of the insurer and it took over the conduct of the proceedings on behalf of the plaintiff. No defence was filed. The defendants obtained default judgment on 14 November 2005 and proceeded to levy execution thereon.

4 An application to set aside the default judgment was made on 30 December 2005.

5 The application was heard and dismissed by a Registrar. The plaintiff then sought a review of that decision. The review was heard and determined by a Magistrate (Stapleton LCM).

6 The review that took place might be described as having the characteristics of a fresh hearing of the application. The Magistrate admitted considerable evidence additional to that which had been before…

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: [2006] NSWSC 1089
Decision Date: 18 October 2006

CaseChat Overview and Summary

In the matter of Borowiak v Hobbs and 1Ors, the dispute arose from an application to set aside a default judgment, with the case being reviewed by a Magistrate following an appeal. The applicant sought to overturn the default judgment, arguing grounds for setting it aside. The court was tasked with determining whether the application should be granted, considering the applicant's delay and explanation, as well as any potential prejudice to the respondent. The overarching consideration was the overriding purpose of the law, which demands that proceedings be justly decided.

The legal issues before the court encompassed the scope of the Magistrate's discretion in setting aside a default judgment, the factors to be weighed in exercising this discretion, and the principles guiding such decisions. The applicant's delay in making the application and the explanation provided for this delay were critical factors. Additionally, the potential prejudice to the respondent if the judgment were set aside needed to be assessed. The court was required to balance these considerations against the overriding objective of resolving disputes justly.

The court exercised its discretion, guided by established authority, to assess the particular facts of the case and the dictates of justice. It considered the applicant's delay in making the application, the explanation offered, and any prejudice to the respondent. The court determined that the application to set aside the default judgment should not be granted, as the applicant's delay was unreasonable, and the explanation insufficient. Furthermore, the respondent would suffer significant prejudice if the judgment were set aside. The overriding purpose of resolving disputes justly was also a critical consideration in the decision.

Consequently, the court dismissed the application to set aside the default judgment. The applicant's delay and inadequate explanation, coupled with the potential prejudice to the respondent, weighed heavily against setting aside the judgment. The court's decision was made in the interest of justice, adhering to the principles established in relevant case law.

Orders