Elhgar v Freightpros Pty Ltd

[2014] NSWSC 517

Supreme Court

New South Wales

Medium Neutral Citation:

Elhgar v Freightpros Pty Ltd [2014] NSWSC 517

Hearing dates:

1 May 2014

Decision date:

01 May 2014

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

1. Strike out the summons filed on 9 April 2014.

2. Otherwise dismiss the proceedings.

3. Order the plaintiff to pay the defendant's costs of the proceedings.

Catchwords:

APPEAL -failure to identify any grounds of appeal or any basis for this court to set aside judgment- availability of avenue of relief in Local Court which ought be pursued before proceedings commenced in Supreme Court

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 29.7, r 36.16

Category:

Principal judgment

Parties:

Shawky Elghar (Plaintiff)
Freightpros Pty Ltd (Defendant)

Representation:

Counsel:
Plaintiff in person
L Rupell (Defendant)
Solicitors:
No instructing solicitor (Plaintiff)
Freedman + Gopalan (Defendant)

File Number(s):

2014/107104

Publication restriction:

Nil

Judgment

1. These proceedings were commenced by summons filed on 9 April 2014 by Shawky Elhgar against Freightpros Pty Limited. Mr Elhgar purports to appeal from the whole of a judgment entered against him ex parte by Magistrate Stapleton in the Local Court on 10 March 2014. However, the summons fails to identify any grounds of appeal or any basis on which this Court would have jurisdiction to set aside the judgment.

1. Mr Rupell, who appears on behalf of the defendant, submitted that the summons ought be struck out because the plaintiff has not availed himself of the procedural route which is open to him under the Uniform Civil Procedure Rules 2005 (NSW) to challenge judgments entered ex parte in the Local Court. Mr Rupell submitted that, on the day of the hearing before Magistrate Stapleton, neither Mr Elhgar nor his legal representative was present. Accordingly it was open to the magistrate pursuant to r 29.7 of the Uniform Civil Procedure Rules to hear the matter in his absence.

1. However, Mr Rupell submitted that the Local Court, pursuant to UCPR r 36.16(2)(b), has jurisdiction to set aside or vary a judgment after the judgment has been entered if it has been given or made in the absence of a party, whether or not the absent party, had notice of the relevant hearing or of the application for the judgment or order.

1. It follows that Mr Elhgar may move the Local Court by notice of motion to set aside the judgment entered by Magistrate Stapleton under this rule. In circumstances where the plaintiff has an avenue for relief in the Local Court and has failed to identify any question of law or mixed question of law or fact, I am persuaded that it is appropriate to strike out the summons filed on 9 April 2014 and otherwise to dismiss the proceedings in this Court.

1. Mr Rupell submitted that it was appropriate that there be an order for costs in favour of his client. Mr Elhgar submitted that no such order should be made since he was told by the Local Court that the appropriate avenue of appeal was to file a summons in this Court.

1. Although I have no reason to doubt what Mr Elhgar submitted to me, I am persuaded by Mr Rupell that it is appropriate that there be an order for costs in favour of his client, since it was not his client's fault that the matter was commenced in what I have found to be an inappropriate jurisdiction.

1. Accordingly I make the following orders:

1. Strike out the summons filed on 9 April 2014.

2. Otherwise dismiss the proceedings

3. Order the plaintiff to pay the defendant's costs of the proceedings.

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Decision last updated: 05 May 2014