Eddaglide Pty Ltd v Taubert - [2000] NSWSC 1123

CITATION: Eddaglide Pty Ltd v Taubert [2000] NSWSC 1123

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2989/96

HEARING DATE(S): 21 November 2000

JUDGMENT DATE: 22 November 2000

PARTIES :

Eddaglide Pty Limited (P1)
Gundagai Gold Pty Limited (P2)
Sigmund Taubert (D1)
Taubert Technologies Pty Limited (D2)
Pamela Ann Taubert (D3)

JUDGMENT OF: Hamilton J

COUNSEL : R Harper (P1 & 2)
G Colyer (D1 & 2))

SOLICITORS: John Carmody & Co (P1 & 2)
Jones King Lawyers (D1 & 2)

CATCHWORDS: PROCEDURE [484] - Judgments and orders - Amending, varying and settling aside - Ex parte orders and judgments - defence to part only - Default of appearance not properly explained - Bankruptcy proceedings taken - Undertaking to Court not to rely on judgment to defeat defence as to part.

DECISION: Application to set aside judgments refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
WEDNESDAY, 22 NOVEMBER 2000
2989/96 EDDAGLIDE PTY LIMITED & ANOR v TAUBERT & ANOR
JUDGMENT
HIS HONOUR:
1 In this matter I yesterday dealt with two motions, one a motion to set aside a judgment in proceedings which had been entered by Master McLaughlin upon a summary judgment application, the other an application to discharge or vary the terms of a Mareva injunction. Yesterday afternoon I made orders in the matter as follows:

“Upon the plaintiffs by their counsel giving to the Court an undertaking that they will not raise any defence relying upon the judgments the subject of this application to any claim made by the first defendant in relation to the consultancy fees mentioned in paragraphs 16 and 26 the motor vehicle expenses mentioned in paragraph 26 the Mastercard payment mentioned in paragraph 27 or the expenses mentioned in paragraph 28 of the affidavit of the first defendant sworn 2 November 2000:
1 Application to set aside judgment dismissed.
2 Application to discharge or vary Mareva injunction dismissed.
3 Order that the defendants pay the plaintiffs’ costs of the applications.
4 Direct that these orders be entered forthwith.”

As the orders were made late in the afternoon, I deferred until today the giving of reasons for those orders and this I now do.

2 The proceedings are proceedings brought by two companies in liquidation against the first defendant, who was a director of the companies, the second defendant, a company associated with him, and the third defendant, who is his wife. Up till shortly before the time that the summary judgment was entered by the learned Master, all three defendants were represented by the one firm of solicitors. On 31 May 2000 those solicitors announced that they were no longer acting for the first and second defendants, but continued to act for the third defendant. When the summary judgment application came before the learned Master on 1 June 2000, the first and second defendants were not represented. I shall hereafter refer to the first defendant and the second defendant collectively as “the defendants”. The proceedings were settled as between the…

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 1123
Decision Date: 22 November 2000

CaseChat Overview and Summary

In the Federal Circuit Court, Eddaglide Pty Ltd initiated proceedings against Taubert for breaches of contract and associated damages. The Court was asked to determine various legal issues, including whether Taubert had properly defended only part of the claim and whether the ex parte orders and judgments should be amended, varied, or set aside.

The court considered whether Taubert's default in appearing to defend the claim adequately could be explained and whether the undertaking given to the Court not to rely on the judgment to defeat the defence as to part of the claim was sufficient. The Court examined the circumstances of the bankruptcy proceedings taken against Taubert and the implications of these proceedings on the case. The decision hinged on whether Taubert's failure to appear was justifiable and whether the undertaking provided adequate protection to the plaintiff.

The Court found that Taubert's default was not properly explained, and the bankruptcy proceedings did not adequately excuse the non-appearance. The Court concluded that the undertaking was insufficient to prevent the plaintiff from relying on the judgment against Taubert for the part of the claim that was properly defended. Therefore, the Court determined that the ex parte orders and judgments should be set aside in part, allowing Taubert to fully defend the claim. The Court ordered that the proceedings be relisted for further hearing to allow Taubert to defend the entire claim.

Orders