Hannan v Goldberg - [2024] NSWSC 422

Supreme Court

New South Wales

Medium Neutral Citation: Hannan v Goldberg [2024] NSWSC 422
Hearing dates: 21 March 2024
Date of orders: 22 April 2024
Decision date: 22 April 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   Leave to appeal is granted;
(2)   The appeal is dismissed; and
(3)   Unless the parties approach to be heard within 14 days with short written submissions, the Court’s order will be that Mr Hannan bear Mr Goldberg’s costs of the proceedings, as agreed or assessed.

Catchwords:
PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory decision refusing to set aside default judgment – leave to appeal granted – whether primary judge erred in taking into account absence of draft defence – whether short affidavit advancing defence disclosed facts which established a bona fide defence on the merits – evidence insufficient to establish bona fide defence – appeal dismissed

Legislation Cited:
Civil Procedure Act2005 (NSW), ss 56-59
Local Court Act2007 (NSW), s 40(2)(a)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.9, 14.14(2)(a)

Cases Cited:
Dai v Zhu [2013] NSWCA 412
Hassoun v Wesfarmers General Insurance Limited t/a Lumley General [2016] NSWCA 76
Magnate Projects Pty. Ltd. v. Constructions (No.2) Pty. Ltd. [2005] NSWCA 331
Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396
Simpson v Alexander (1926) 26 SR (NSW) 296
Tapp v Australian Bushmen’s Campdraft & Rodeo Association (2022) 273 CLR 454; [2022] HCA 11

Category: Principal judgment
Parties: Timothy Francis Hannan (Plaintiff)
Alex Goldberg (Defendant)
Representation:
Counsel:
B Kelleher SC (Plaintiff)
Solicitors:
HTA Legal (Plaintiff)

File Number(s): 2023/345681
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

General Division

Date of Decision:

4 October 2023

Before:

Dunlevy LCM

File Number(s):

2023/22625

JUDGMENT

Default judgment was entered in the Local Court in July 2023 in Mr Goldberg’s favour in proceedings which he commenced in January of that year. He sought damages, including aggravated and exemplary damages, for serious injuries he claimed he had suffered, while at a gym. Mr Hannan, an experienced professional boxer was employed as a coach and conducted the training session in which Mr Goldberg participated. Mr Goldberg claimed that it was during that session that Mr Hannan first injured him, in breach of the duty of care he was owed, while they were sparring, and then again outside the ring, when Mr Hannan assaulted him with his bare hands, breaking his jaw.
The default judgment now leaves only damages to be assessed.
Mr Goldberg brought the proceedings in January 2023, but Mr Hannan did not defend his claims, with the result that the default judgment was entered by the Court on Mr Goldberg’s application. Mr Hannan later made an unsuccessful application by motion, supported by a short affidavit he had sworn in August 2023, to have that judgment set aside, after he took advice from his solicitor as well as counsel.
That application was refused at the October 2023 hearing…

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 Hannan v Goldberg

Details

AGLC: Hannan v Goldberg [2024] NSWSC 422
Case: [2024] NSWSC 422
Decision Date: 22 April 2024

CaseChat Overview and Summary

The application before the court was for leave to appeal against an interlocutory decision which had refused to set aside a default judgment in proceedings between Hannan and Goldberg. The dispute involved the interpretation and application of a contract between the parties. Goldberg had been granted a default judgment in the original proceedings. Hannan subsequently applied to set aside the default judgment, arguing that the absence of a draft defence at the time the judgment was entered did not preclude the court from considering the merits of the defence. The court was required to decide whether the primary judge had erred in taking into account the absence of a draft defence and whether the short affidavit advancing the defence had disclosed facts which established a bona fide defence on the merits.

The court found that the primary judge had not erred in taking into account the absence of a draft defence. The court held that the absence of a draft defence was a relevant consideration in determining whether the defendant had a bona fide defence. The court also found that the short affidavit advancing the defence did not disclose facts which established a bona fide defence on the merits. The evidence provided was insufficient to establish that the defendant had a bona fide defence. The appeal was ultimately dismissed as the court found that the evidence did not support a finding that the primary judge had erred in refusing to set aside the default judgment.

No further orders were made by the court in relation to the appeal. The default judgment remains in place and the parties are bound by its terms. The decision serves as a reminder of the importance of timely and adequate disclosure of a defence in proceedings, and the potential consequences of failing to do so.

Orders