Elder v Cameron (No 2) - [2007] NSWSC 984

CITATION: Elder & Ors v Cameron & Ors (No 2) [2007] NSWSC 984

HEARING DATE(S): 31/07/2007

JUDGMENT DATE :
4 September 2007

JUDGMENT OF: Gzell J

DECISION: Application dismissed with costs.

CATCHWORDS: PROCEDURE - Setting aside orders - Orders not entered - Defendant in person failed to attend at trial - Specific performance of agreement entered into by her solicitor - Whether she established that by accident without fault on her part she had not been heard - Whether the Uniform Civil Procedure Rules 2005, r 36.16(1) applied - Whether counsel for the plaintiffs was under a duty to put her case - Whether this failure meant the orders were made irregularly or against good faith for the purpose of the Uniform Civil Procedure Rules 2005, r 36.15(1) - Whether entitled to have case re-opened - Whether any material relied upon would have altered the orders

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Ritchie's Supreme Court Procedure

CASES CITED: Elder & Ors v Cameron & Anor [2007] NSWSC 743
Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672
Autodesk Inc v Dyason (No 2) (1992-1993) 176 CLR 300
Smith v New South Wales Bar Association (1992) 176 CLR 256
Patterson v Cohen [2005] NSWSC 740
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134

PARTIES:
Christopher Andrew Elder - First Plaintiff
Maurice John McCarthy - Second Plaintiff
Stuart Graeme Holden Tipple - Third Plaintiff
Ranchmoore Pty Ltd - Fourth Plaintiff
Bedizen Pty Ltd - Fifth Plaintiff
Anthony Morton - Sixth Plaintiff
Pamela Morton - Seventh Plaintiff
Cameron Malcolm Bruce - First Defendant
Tricia Mary Crane - Second Defendant
Malcolm Bruce Cameron

FILE NUMBER(S): SC 5702/06

COUNSEL: Mr P Menadue - Plaintiffs
Ms L Evans - Second Defendant

SOLICITORS: Penmans Solicitors - Plaintiffs
Cameron & Myers Solicitors - Frist Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 4 SEPTEMBER

5702/06 CHRISTOPHER ANDREW ELDER & ORS v MALCOLM BRUCE CAMERON & ANOR (NO 2)

JUDGMENT

The issue

1 On 9 July 2007, I heard an application by the plaintiffs for specific performance of an agreement. I made orders in favour of the plaintiffs. In particular, I ordered that, in accordance with a deed of indemnity, Malcolm Bruce Cameron, the first defendant, sign a withdrawal form for the payment of money invested in the names of Mr Cameron and the first, second and third plaintiffs (Elder & Ors v Cameron & Anor [2007] NSWSC 743).

2 Tricia Mary Crane was the second defendant in those proceedings. She did not appear at the hearing. Subsequently, she filed a notice of motion that the orders be set aside.

Background

3 Mr Cameron was a partner of the law firm Cameron & Myers who acted for Ms Crane in relation to the deed of indemnity. Christopher Andrew Elder, the first plaintiff, was the solicitor for Ranchmoor Pty Ltd, the fourth plaintiff. Maurice John McCarthy, the second plaintiff, was the solicitor for Bedizen Pty Ltd, the fifth plaintiff.…

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.

Continue reading Elder v Cameron (No 2)

Details

AGLC: Elder v Cameron (No 2) [2007] NSWSC 984
Case: [2007] NSWSC 984
Decision Date: 4 September 2007

CaseChat Overview and Summary

In the matter of Elder v Cameron, the case was heard before the Supreme Court of Queensland. The plaintiff, Elder, sought to enforce an agreement for the sale of land, which had been entered into by Cameron's solicitor. The defendant, Cameron, did not attend the trial in person and failed to appear, resulting in the court making orders for specific performance. Cameron subsequently applied to set aside these orders, arguing that her absence was due to an accident without fault on her part and that the orders were irregular or made against good faith.

The primary legal issue before the court was whether the Uniform Civil Procedure Rules 2005, rule 36.16(1) applied, which allows for the setting aside of orders if the defendant can demonstrate that they were not heard by accident or fault on their part. The court also considered whether counsel for the plaintiffs had a duty to present Cameron's case and whether this omission rendered the orders irregular or against good faith as per rule 36.15(1). Furthermore, the court examined whether Cameron was entitled to have her case reopened and whether the material she sought to rely on would have altered the outcome of the orders.

The court determined that rule 36.16(1) did apply, and Cameron had established that her absence was accidental and without fault on her part. However, the court found that counsel for the plaintiffs was not under a duty to present Cameron's case. As a result, the orders were not irregular or made against good faith. The court concluded that Cameron was not entitled to have her case reopened because the material she sought to rely on would not have altered the outcome of the orders. Consequently, the application to set aside the orders was dismissed.

In summary, the court upheld the orders for specific performance and denied Cameron's application to set them aside. The court found that while Cameron's absence was accidental and without fault, the plaintiffs' counsel was not obligated to present her case. Additionally, the court determined that the material Cameron sought to rely on would not have altered the outcome of the orders, thus affirming the original decision.

Orders