Hampson v Maleski

[2014] NSWCA 155

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hampson v Maleski [2014] NSWCA 155

Hearing dates:

On the papers

Decision date:

19 May 2014

Before:

Beazley P

Decision:

1. Remit the following proceedings to the Common Law Division of the Supreme Court:

Donald Hampson v Nadine Maleski CA 2014/51000.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - Appeal from a decision of Associate Judge - Interlocutory decision - Uniform Civil Procedure Rules, r 49.4 - Where proceedings wrongly instituted in Court of Appeal - Remitter to Division of the Supreme Court - Supreme Court Act 1970, s 51(2)

Legislation Cited:

Civil Procedure Act 2005
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Abouloff v Oppenheimer (1882) 10 QBD 295
Keele v Findlay (1990) 21 NSWLR 444
Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3
Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151
Yoong v Song [2000] NSWSC 1147

Category:

Interlocutory applications

Parties:

Donald Hampson (Applicant)
Nadine Maleski (Respondent)

Representation:

Solicitors:
Loke Bushby International (Applicant)
Bennett & Philp Lawyers (Brisbane) (Respondent)

File Number(s):

CA 2014/51000

 Decision under appeal 

Jurisdiction:

9111

Citation:

Maleski v Hampson [2013] NSWSC 1794

Date of Decision:

2013-12-06 00:00:00

Before:

Harrison AsJ

File Number(s):

2013/82455

Judgment

1. HER HONOUR: By summons for leave to appeal filed 18 February 2014, the applicant sought leave to appeal from the orders of Harrison AsJ made on 5 December 2013 striking out his defence to the claim brought by the respondent to enforce the default judgment given in her favour by the Superior Court of New Jersey on 14 March 2011. The application determined by her Honour was brought by way of an amended notice of motion for the striking out of the defence pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 14.28 and/or the Civil Procedure Act 2005, s 61(3)(c), and an order pursuant to UCPR, Pt 16 and/or the Civil Procedure Act, s 61(3)(c) that judgment be entered against the defendant in accordance with the relief claimed in the statement of claim.

1. Harrison AsJ, having determined that the defence should be struck out, further determined that the respondent's claim for interest should be allowed on the amount claimed. Her Honour, at [52], stated her intention to enter judgment for the respondent on her claim, once the parties had checked her Honour's calculations of the judgment sum plus interest. An examination of the court records indicate that judgment was subsequently entered for the respondent in the sum of $140,519.52 and the defendant was ordered to pay the plaintiff's costs as agreed or assessed.

1. Her Honour's decision striking out the defence was an interlocutory decision. Pursuant to the rules of court, an appeal from an interlocutory decision of an associate judge should have been brought by way of notice of motion in the Common Law Division of the Supreme Court: see UCPR, rr 49.4 and 49.8; Supreme Court Rules 1970, r 60.17. See also Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151. It follows that the summons for leave to appeal has been wrongly brought in the Court of Appeal. This Court has power, of its own motion, to remit the proceedings to a division of the Supreme Court: Supreme Court Act 1970, s 51(2)(b), or in the absence of such direction, the proceedings may be continued and disposed of by the Court of Appeal: s 51(2)(d).

1. The applicant, in his draft notice of appeal filed in accordance with the rules relating to summons for leave to appeal in this Court, has pleaded that the trial judge erred in applying Keele v Findlay (1990) 21 NSWLR 444, which involved the consideration of a defence to a foreign judgment based on fraud. The appellant contends Harrison AsJ gave no consideration to later authority which specifically overruled Keele, failed to reconcile authorities which both support and reject Keele and that her Honour erred in finding that the respondent did not commit fraud. The appellant's summary of argument makes it clear that his submission is that Harrison AsJ had erred in not following a line of authorities beginning with Abouloff v Oppenheimer (1882) 10 QBD 295, which was followed in Yoong v Song [2000] NSWSC 1147. It is to be noted that Rogers CJ Comm D had refused to follow this line of authority in Keele: see at 457-458.

1. In my opinion, this case is appropriately heard and determined by a judge in the Common Law Division for the following reasons. First, in Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3, Bathurst CJ (with whom Gleeson JA and Sackville AJA agreed), although finding it was "unnecessary to choose" between the competing approaches, commented that there were "powerful reasons for preferring the views in Keele" and proceeded to consider six reasons why Keele should be followed: see at [136]-[145]. Secondly, Harrison AsJ held that the allegations of fraud were "without merit" and commented "[o]n both the English and domestic approaches the matters raised in the defence do not constitute fraud".

1. Accordingly, pursuant to s 51(2)(b), I make the following order:

1. Remit the following proceedings to the Common Law Division of the Supreme Court:

Donald Hampson v Nadine Maleski CA 2014/51000.

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Decision last updated: 19 May 2014