Defined Properties Investment ATF the Define Property Trust No. 1 v National Commercial Finance Pty Limited (No 2)

[2018] NSWSC 1258

Supreme Court

New South Wales

Medium Neutral Citation:	Defined Properties Investment ATF the Define Property Trust No. 1 v National Commercial Finance Pty Limited (No 2) [2018] NSWSC 1258
Hearing dates:	9 August 2018
Date of orders:	09 August 2018
Decision date:	09 August 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) The amended notice of motion of 17 May 2018 is dismissed without prejudice to the plaintiffs' right to commence such fresh proceedings ventilating the same subject matter as they may be advised to bring. (2) Dismiss the defendant's motion of 2 August 2018. (3) No order as to costs, to the intent that the parties will each bear their own.
Catchwords:	CIVIL PROCEDURE – Application to set aside judgment - whether judgment should be set aside – other extensive relief impugning mortgage sought – dismissal for want of dispatch – delay – explanation – firm rule – ventilation of grievances – finalised orders of court – inappropriate to grant leave
Legislation Cited:	Nil
Cases Cited:	Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	National Commercial Finance Pty Limited (Defendant/applicant) Defined Properties Investment AIF the Define Property Trust No. 1 (Plaintiff/respondent)
Representation:	Counsel: N Chase-Berry (solicitor) (Defendant/applicant) M Foley (solicitor) (Plaintiff/respondent)   Solicitors: ERA Legal (Defendant/applicant) Foleys (Plaintiff/respondent)
File Number(s):	2017/317826

EX TEMPORE Judgment - revised

1. I have dealt with an application for an interlocutory injunction staying an auction which I have refused. I will now return to the matter that was referred to me by the Registrar, which is the defendant's motion filed on 2 August 2018, seeking dismissal of an amended notice of motion filed in court on 17 May 2018. The motion seeks extensive relief. Among other things it seeks to set aside the Court’s judgment entered on 16 January 2018. I have, in my previous judgment, detailed the plaintiffs’ delay in complying with orders of the court made permitting them to ventilate their grievances by amended pleadings in the same proceedings as the judgment. I will not repeat those matters.

2. Since I have turned to deal with the motion, Mr Chase-Berry, who appears for the applicant, has read his principal's affidavit of 2 August 2018 and Mr Foley, who appears for the respondents, has read an affidavit of Mr Dimitriou of 9 August 2018. Although I am satisfied that, on the face of it, there has been delay of such a nature that would prima facie justify granting the relief sought, that is to say, dismissal for want of due dispatch, the evidence contained in Mr Dimitriou's affidavit at least provides some justification explaining a degree of delay. That justification is that since the mortgagee has gone into possession, he has suffered from depression and he has been at the disadvantage of not having access to papers and the like remaining within the premises. I think those explanations are understandable, and I would have been reluctant to dismiss the proceedings given he has now sought to comply with the orders in as much as there is a very extensive document setting out the claims, not perfect by any means, annexed to his affidavit of 8 August 2018.

3. I did draw the attention of the parties to the decision of the Court of Appeal in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 (“Spies v CBA”), where Handley JA stated the firm rule that where a party seeks to set aside a judgment of the court it is necessary that the claim be ventilated in a new action brought for that purpose. And, by reference to Harvey v Phillips (1956) 95 CLR 235 at 243 - 244, the rule seems to apply whether the ground is illegality, misrepresentation, non-disclosure where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like.

4. The rule certainly applies in the case of an allegation of fraud vitiating the consent that founded the judgment. In Spies v CBA (at 697) Handley JA said:

“...it is also established that the jurisdiction to set aside the consent order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings." (Citations omitted.)

His Honour pointed out that compliance with the rule could be waived because it is a rule of practice not substantive law. As the rule had not been brought to the attention of the mortgagee or its representatives on their previous appearances before other judges, there failure to object to orders made facilitating the plaintiffs' pleading a case in these proceedings may be a waiver. However, I do not think it necessary to decide that point.

5. Given that the proper ventilation of Mr Dimitriou's and Defined Property's grievances involves the joinder of a number of additional defendants, it is inappropriate that I grant leave to plead in the context of proceedings which have been finalised by an order of the court to which none of those additional parties were a party. By and large the most convenient way of proceeding is to require the plaintiffs to commence fresh proceedings by way of statement of claim naming each of the parties whose conduct is complained of.

6. So, although I would not have acceded to the application to dismiss the proceedings for want of due dispatch, I think it appropriate to dismiss the motion of 17 May 2018 without prejudice to the rights of the plaintiffs to commence such fresh proceedings by way of statement of claim as they may be advised to bring.

7. In the circumstances, I should also dismiss the motion of 2 August 2018 but with no order as to costs to the intent that each of the parties to it will bear their own costs.

8. My orders are:

1. The amended notice of motion of 17 May 2018 is dismissed without prejudice to the plaintiffs' right to commence such fresh proceedings ventilating the same subject matter as they may be advised to bring.

2. Dismiss the defendant's motion of 2 August 2018.

3. No order as to costs, to the intent that the parties will each bear their own costs.

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Decision last updated: 21 August 2018