Hayes v Westpac Banking Corporation

Hayes v Westpac Banking Corporation is an appeal against the dismissal of an application to set aside judgments entered in favour of Westpac Banking Corporation and Balmain Commercial. The applicant, Mr Hayes, had been sued on a guarantee and had counterclaimed against both respondents. The trial was delayed due to the applicant’s illness and absence, which led to the trial judge refusing a further adjournment application. Consequently, the trial judge delivered judgment in favour of Westpac and Balmain Commercial. Mr Hayes subsequently applied for an order setting aside the judgments under r 667 of the Uniform Civil Procedure Rules 1999 (Qld) after the orders had been filed. The primary judge dismissed the application, leading to this appeal on the basis that the primary judge should have followed the decision in McIntosh v Linke Nominees Pty Ltd.

The central legal issue in this appeal was whether the primary judge should have adhered to the decision in McIntosh v Linke Nominees Pty Ltd when considering the application to set aside the judgment. Mr Hayes contended that the primary judge erred by not extending the time for the application under r 7 of the UCPR, as per the McIntosh decision. Westpac and Balmain Commercial argued that the decision in McIntosh should not be followed and that the primary judge’s decision should be upheld. The appeal also questioned the discretionary grounds on which the primary judge refused the application, including the applicant's reasons for not attending the trial and his intention to engage a barrister.

The Court of Appeal found that the primary judge did not err in dismissing the application to set aside the judgments. The Court held that the McIntosh decision was not binding and should not be followed in this context. The Court also found that the primary judge appropriately exercised his discretion in refusing the application on the grounds that Mr Hayes had not provided sufficient justification for the delay in filing the application and had not shown a reasonable prospect of success on the merits. The Court of Appeal concluded that the primary judge’s decision was correct and dismissed the appeal.

In accordance with the outcome, the appeal was dismissed, and Mr Hayes was ordered to pay the costs of the appeal to both Westpac and Balmain Commercial.