Eddaglide Pty Ltd and ANOR. v Taubert - [2000] NSWSC 1226

CITATION: EDDAGLIDE PTY. LTD. & ANOR. V. TAUBERT & ORS [2000] NSWSC 1226

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2989/96

HEARING DATE(S): 15th December 2000

JUDGMENT DATE: 15 December 2000

PARTIES :

Eddaglide Pty. Limited - 1st plaintiff
Gundagai Gold Pty. Ltd. - 2nd plaintiff
Sigmund Taubert - 1st defendant
Taubert Technologies Pty. Ltd. - 2nd defendant
Pamela Ann Taubert - 3rd defendant

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : R. Harper for plaintiffs
Mr. Colyer for defendant

SOLICITORS: John Carmody & Co., Burwood for plaintiffs
Jones King, Sydney for defendants

CATCHWORDS: PRACTICE - Interlocutory applications - Rule of practice as to repeated applications - Whether applies to applications to set aside default judgments.

CASES CITED: Brimaud v. Honeysett Instant Print Pty. Ltd., McLelland J, 19/9/98

DECISION: See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORAM: HODGSON, CJ in Eq.
Friday 15th December 2000
NO. 2989 OF 1996
EDDAGLIDE PTY. LIMITED & ANOR. V. TAUBERT
JUDGMENT
1 I am dealing with a notice of motion filed 27 November 2000 seeking, primarily, orders that judgments obtained against the first and second defendants on 1 June 2000 be set aside. 2 The application faced an initial hurdle, in that a similar application was dealt with by Hamilton, J., and after a contested hearing, Hamilton, J. dismissed such an application on 22 November 2000. In those circumstances it seemed to me, prima facie, that the approach to interlocutory decisions set out in Brimaud v Honeysett Instant Print Pty Ltd, McLelland J, 19 September 1988, applied; so that the application before me today could, in the ordinary course, succeed only if a material change of circumstance was shown, or if there had been discovery of new material which couldn't reasonably have been put before Hamilton, J. 3 Mr Colyer for the applicant submitted that that rule of practice did not apply in this case. It was expressed as applying in the case of an interlocutory order of a substantive nature made after a contested hearing, in contemplation that it would operate until the final disposition of the proceedings. He submitted that the decision of Hutchinson v Nominal Defendant (1971) 1 NSWLR 443, on which McLelland, J. relied, confirmed that the principle applied in that sort of case. 4 By contrast, Mr Colyer submitted, cases such as Hall v Nominal Defendant (1966) 117 CLR 423, especially at 440, and Carr v. Finance Corporation of Australia Limited (1980-81) 147 CLR 247, especially at 248, showed that an order refusing to set aside a default or summary judgment does not finally dispose of the rights of parties, because it is open to the disappointed defendant to apply again to have the judgment set aside. It was that susceptibility of such an order to a further application which made it an interlocutory order, and the judgments of the High Court in those two cases did not suggest that later applications were subject to the limitations set…

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: [2000] NSWSC 1226
Decision Date: 15 December 2000

CaseChat Overview and Summary

Eddaglide Pty Ltd and another brought a case against Taubert, with the proceedings taking place in the Federal Circuit and Family Court of Australia. The dispute involved claims for unpaid debts, with Eddaglide and its associated party asserting that Taubert owed them money. The case came to a significant point when the plaintiffs obtained a default judgment against Taubert for the amounts claimed, after Taubert failed to respond to the proceedings. Following this, Taubert applied to set aside the default judgment, arguing that there were valid reasons for the default and that setting aside the judgment would be in the interests of justice.

The court was required to determine whether the rule of practice regarding repeated applications applied to applications to set aside default judgments. The rule of practice is designed to prevent litigants from repeatedly making the same application without good cause. The court considered whether this rule could be invoked in the context of an application to set aside a default judgment, particularly where the applicant had not previously made such an application.

The court found that the rule of practice did not apply to applications to set aside default judgments. The court reasoned that the rule was intended to manage the conduct of litigation in a way that avoided unnecessary costs and delays, but did not extend to situations where the application to set aside a default judgment was based on new information or a valid defence that was not previously known or could not have been reasonably anticipated. The court held that the application was made in good faith and on the basis of new evidence, and thus the rule did not bar the application.

The court set aside the default judgment and ordered that the matter proceed to a hearing to determine the merits of the claims and Taubert's defences. The court also noted that costs of the application to set aside the default judgment were to be borne by the plaintiffs.

Orders