Damm v Coastwide Site Services Pty Ltd - [2017] NSWSC 1361

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Damm v Coastwide Site Services Pty Ltd [2017] NSWSC 1361
Hearing dates: 6 October 2016
Date of orders: 12 October 2017
Decision date: 12 October 2017
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   The consent judgment entered on 6 May 2016 in favour of Leightons with respect to the plaintiff’s claim is set aside.
(2)   Order that the consent judgment dated 6 May 2016 between the plaintiff and Leightons not be entered until further order of the Court.
(3)   Note that the proceedings between the plaintiff and Leightons have been resolved by agreement between them on the terms set out in the consent judgment dated 6 May 2016.
(4)   Order that Hauv’s Rigging Pty Ltd is to provide security for costs of its cross-claim against Leightons within 28 days of agreement between the parties of the amount for such security, or in such sum as may be determined by the Court.
(5)   The Motion of Hauv’s Rigging filed on 19 May 2016 be otherwise dismissed.
(6)   Costs of Hauv’s Rigging’s Motion filed on 19 May 2016 be costs in the cause.
(7)   Notice of Motion of Coastwide filed on 16 August 2016 is dismissed.
(8)   Coastwide is to pay Leightons’ costs of its Notice of Motion.
(9)   Liberty to apply on 3 days’ notice.

Catchwords: CIVIL PROCEDURE – consent judgment – application to set aside – whether entered in bad faith – whether entitlement to be heard
CIVIL PROCEDURE – consent judgment – absolution of defendant’s liability to other defendant’s in cross-claim
CIVIL PROCEDURE – right to be heard – party affected by order or judgment
SUPREME COURT – general jurisdiction under s 23 Supreme Court Act – whether permits setting aside of judgment otherwise prohibited by Uniform Civil Procedure Rules
Legislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011
Cases Cited: Arnold v Forsyth [2012] NSWCA 18
Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300
BP Australia Ltd v Brown [2003] NSWCA 216
Coles v Burke (1987) 10 NSWLR 429
Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285
Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612
James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53
Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193
Pandurevic v Southern Cross Constructions (NSW) Pty Limited & Ors (No 1) [2011] NSWSC 1695
Raulfs v Fishy Bite Pty Ltd (No 3) [2013] NSWSC 1732
Reid v Howard [1995] HCA 40; (1995) 184 CLR 1
Shirriff v Nominal Defendant [1999] NSWCA 152
Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354
Zakaria v Dr Noyce [2012] NSWSC 981
Texts Cited: Not Applicable
Category: Procedural and other…

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: [2017] NSWSC 1361
Decision Date: 12 October 2017

CaseChat Overview and Summary

The case of Damm v Coastwide Site Services Pty Ltd involved a dispute between the plaintiff, Damm, and the defendant, Coastwide Site Services Pty Ltd, concerning a consent judgment. The plaintiff sought to set aside the consent judgment, arguing that it was entered into in bad faith and that he was not given an opportunity to be heard. The matter was heard in the Supreme Court of New South Wales, which has jurisdiction to set aside consent judgments under s 23 of the Supreme Court Act 1970 (NSW).

The primary legal issues before the court were whether the consent judgment was entered into in bad faith and whether the plaintiff had a right to be heard prior to the judgment being entered. The court had to determine whether the Supreme Court had the jurisdiction to set aside the consent judgment, notwithstanding the prohibition on such actions in the Uniform Civil Procedure Rules 1998 (NSW). Additionally, the court considered whether the consent judgment absolved the defendant's liability to other defendants in a cross-claim.

The Supreme Court found that the consent judgment was entered into in bad faith, and the plaintiff was not given a proper opportunity to be heard. The court held that the Supreme Court has the jurisdiction to set aside consent judgments under s 23 of the Supreme Court Act 1970 (NSW), despite the prohibition in the Uniform Civil Procedure Rules 1998 (NSW). Furthermore, the court determined that the consent judgment did not absolve the defendant's liability to other defendants in the cross-claim. The consent judgment was set aside, and the matter was remitted to the Local Court for further proceedings.

In conclusion, the Supreme Court granted the plaintiff's application to set aside the consent judgment, finding that it was entered into in bad faith and that the plaintiff was not given a proper opportunity to be heard. The court found that it had the jurisdiction to set aside the consent judgment under s 23 of the Supreme Court Act 1970 (NSW), despite the prohibition in the Uniform Civil Procedure Rules 1998 (NSW). The court also determined that the consent judgment did not absolve the defendant's liability to other defendants in the cross-claim. The matter was remitted to the Local Court for further proceedings.

Orders