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Hilton v Gidley

Hilton v Gidley

Case [2016] NSWSC 594 12 May 2016

Standing

Jurisdiction

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Hilton v Gidley [2016] NSWSC 594
Hearing dates: 3 March 2016, 4 March 2016, 17 March 2016 and 15 April 2016
Date of orders: 12 May 2016
Decision date: 12 May 2016
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Motion is dismissed with an order for costs as agreed or assessed in favour of Mr Hilton.

Catchwords: PROCEDURE – notice of motion – question of standing – orders sought refused – whether previous judgments were given in good faith – no case under Rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) – weak case under Rule 36.16 – orders made – costs
Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allesch v Maunz (2000) 203 CLR 172
Australian Competition and Consumer Commission v Lux Distributors Pty Limited [2013] FCAFC 90
ANZ Banking Group Ltd v Capper & Anor [2001] NSWSC 946
Bagshaw v Scott [2002] FCAFC 362; (2002) 126 FCR 27
Bendigo Bank Ltd v Demaria & Ors [2001] VSC 218
Blomley v Ryan (1956) 99 CLR 362
Coles v Burke (1987) 10 NSWLR 429
Crackenback Investments Pty Ltd v Wywsik (Supreme Court (NSW), Master Greenwood, 25 August 1983, unrep)
Cummings v Claremont Petroleum [1996] HCA 19; (1996) 185 CLR 124
Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 182
Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260
Foong v Commonwealth Bank of Australia [2014] NSWCA 246
Goater v Commonwealth Bank of Australia [2014] NSWCA 382; (2014) 88 NSWLR 362
Hilton v Berkemeier [2014] NSWCA 464
Hilton v Gidley [2009] NSWSC 383
Hilton v Gidley [2014] NSWSC 874
Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392
Kavia Holdings Pty Limited v Werncog Pty Limited [1999] NSWSC 932
Kendell v Carnegie & Ors [2006] NSWCA 302; (2006) 68 NSWLR 193
Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
National Australia Bank Limited v Strik [2009] NSWSC 184
Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41
Roach v B&W Steel Pty Ltd (1991) 23 NSWLR 110
Re-Engine Pty Ltd (In liq) v Fergusson [2007] VSC 57; (2007) 209 FLR 1
Shirriff v The Nominal Defendant [1999] NSWCA 152
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389
Steinhoff Australia Pacific Limited v Lifestyle Retailing Pty Limited and 1 Or; Lifestyle Retailing Pty Limited and 1 Or v Steinhoff Asia Pacific Ltd [2011] NSWSC 1621
Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422
Category: Procedural and other rulings
Parties: Norman Anthony Hilton (Plaintiff)
Isobelle Gidley (First Defendant)
Richard John Shears (Second Defendant)
Daniel John Bickel (Third Defendant)
Cynthia Frances Berkemeier (Fourth Defendant)
Representation:
Counsel:
Mr…

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 Hilton v Gidley

Details

AGLC: Hilton v Gidley [2016] NSWSC 594
Case: [2016] NSWSC 594
Decision Date: 12 May 2016

CaseChat Overview and Summary

The case of Hilton v Gidley involved a dispute between the plaintiff, Hilton, and the defendant, Gidley. Hilton sought to set aside a series of prior court judgments on the basis that they were not made in good faith. The case was heard in the Supreme Court of New South Wales. The plaintiff's application was made under Rule 36.15 and Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). The court was required to determine whether the prior judgments were made in good faith and whether the application was a weak case warranting an order under Rule 36.16.

The court considered the nature of the application and whether it fell within the scope of Rule 36.15. The plaintiff's argument was that the previous judgments were not made in good faith and that the court had failed to exercise its jurisdiction properly. The court found that the application did not fall within the scope of Rule 36.15, as it was not seeking to set aside a judgment on the basis of fraud or misconduct. The court also considered whether the application was a weak case under Rule 36.16. The court found that the application was weak, as the plaintiff had not provided sufficient evidence to support their claims. The court held that the application was an abuse of process and that the plaintiff had no standing to bring the application.

The court refused the orders sought by the plaintiff and ordered the plaintiff to pay the defendant's costs. The court held that the application was an abuse of process and that the plaintiff had no standing to bring the application. The court found that the plaintiff's claims were not supported by evidence and that the application was weak. The court held that the application was an abuse of process and that the plaintiff had no standing to bring the application. The court ordered the plaintiff to pay the defendant's costs.

Orders