Evergreen Tours Pty Ltd v McLaren - [2010] NSWSC 1362

CITATION: EVERGREEN TOURS PTY LTD v McLAREN [2010] NSWSC 1362

HEARING DATE(S): 22 November 2010

JUDGMENT DATE :
26 November 2010

JUDGMENT OF: Tamberlin AJ at 1

DECISION: (1) The defendants be granted leave to withdraw their notice of submitting appearance filed on 14 September 2010.
(2) The defendants file and serve a further notice of appearance by 3 December 2010.
(3) The matter proceed by way of pleadings.
(4) The plaintiffs file and serve a statement of claim by 17 December 2010.
(5) The defendants file and serve a defence by 4 February 2011.
(6) The matter be listed for further directions before the Registrar on 11 February 2011.
(7) The defendants pay the plaintiffs’ costs of this application except in relation to the Notice to Produce.
(8) The plaintiffs’ pay the defendants costs of the Notice to Produce.
(9) Liberty to apply on 2 days’ notice.

CATCHWORDS: PROCEDURE – submitting appearance – whether discretion to grant leave to withdraw submitting appearance should be exercised – failure to obtain legal advice as to availability or strength of possible defences – appearance filed in circumstances of lack of funds and wish to avoid costs – whether defendant has an arguable defence – Uniform Civil Procedure Rules 2005 (NSW) rr 6.11(2), 12.5

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rr 6.9, 6.11, 12,5

CATEGORY: Procedural and other rulings

CASES CITED: Chan v Zachariah (1984) 154 CLR 178
Firth v John Mowlem and Co Ltd [1978] 3 All ER 331
Garsec v His Majesty the Sultan of Brunei [2007] NSWSC 882
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Hilton v Gidley [2009] NSWSC 383
Sahab Holdings Pty Ltd v Registrar General [2009] NSWSC 1143
Somportex Ltd v Philadelphia Chewing Gum Corp [1968] 3 All ER 26

PARTIES: Evergreen Tours Pty Ltd (First Plaintiff)
Mia Kate Moroney (Second Plaintiff)
Glen Moroney (Third Plaintiff)
Hamish McLaren (First Defendant)
Burlington Prudential Pty Ltd (Second Defendant)

FILE NUMBER(S): SC 2010/292821

COUNSEL: A Cheshire (Plaintiffs)
C Bova (Defendants)

SOLICITORS: Turnbull Bowles (Plaintiffs)
Ian Harold Congdon (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

TAMBERLIN AJ

26 NOVEMBER 2010

HAMISH McLAREN (AKA HAMISH WATSON)

JUDGMENT

1 HIS HONOUR: The defendants filed a notice of motion on 1 October 2010 seeking an order pursuant to Part 6, r 6.11(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that they be granted leave to withdraw their Notice of Appearance submitting to the orders of the court, filed on 14 September 2010 and be permitted to file and serve a further notice of appearance by a specified date enabling them to contest the claims of the plaintiffs. Alternatively the defendants rely on the discretion to grant leave to withdraw an appearance under Part 12, r 12.5 of the UCPR.

2 Part 6 of the UCPR is concerned with the entry of an appearance (r 6.9) and r 6.11(1) enables a defendant who intends to take no active part in proceedings to…

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: [2010] NSWSC 1362
Decision Date: 26 November 2010

CaseChat Overview and Summary

The matter before the court involved Evergreen Tours Pty Ltd, a plaintiff, and McLaren, the defendant. The dispute centred on the defendant's attempt to withdraw an appearance to defend a claim filed by the plaintiff. The case was heard in the Local Court of New South Wales. The plaintiff had initiated legal proceedings against the defendant, who subsequently filed an appearance to defend the claim. However, the defendant later sought to withdraw this appearance, citing a lack of funds and a desire to avoid potential costs. The central legal issue was whether the court should exercise its discretion under the Uniform Civil Procedure Rules 2005 (NSW) to allow the defendant to withdraw the appearance. The court needed to determine whether the defendant had a viable defence and whether the failure to seek legal advice about the strength of such a defence was a relevant factor in its decision.

The court examined the circumstances under which the appearance was originally filed and considered the defendant's financial situation and reasons for wanting to withdraw. The court noted that while there was no obligation to obtain legal advice before filing an appearance, the lack of such advice could impact the court's assessment of the defendant's capacity to defend the claim. The court also assessed whether the defendant had an arguable defence that could be pursued. Ultimately, the court found that the defendant did not have a clear or arguable defence to the plaintiff's claim. Given the absence of a viable defence and the circumstances under which the appearance was filed, the court decided not to exercise its discretion to allow the withdrawal of the appearance.

Consequently, the court denied the defendant's application to withdraw the appearance, thereby requiring the defendant to proceed with the defence of the plaintiff's claim. The court's decision emphasised the importance of having a reasonable basis for filing an appearance and the consequences of failing to seek appropriate legal advice. The court's ruling reinforced the principle that the discretion to allow withdrawal of an appearance should be exercised sparingly, particularly where there is no arguable defence and the defendant's financial situation does not justify the withdrawal.

Orders