Hilton v Gidley

Case [2014] NSWSC 874


Supreme Court


New South Wales

Medium Neutral Citation: Hilton v Gidley [2014] NSWSC 874
Hearing dates:2 & 3 June 2014
Decision date: 03 July 2014
Before: Harrison J
Decision:

1. Grant leave to the fourth defendant to appear in these proceedings for the purpose of opposing the plaintiff's notice of motion filed 20 November 2013 and seeking orders (2) and (3) below.

2. Set aside the orders of Hislop J made on 22 May 2009.

3. Set aside the orders of Patten AJ made on 5 August 2009.

4. Direct the fourth defendant to file and serve any defence or other pleading upon which she intends to rely within 21 days of today's date.

5. Stand the proceedings over before me for further directions, including directions concerning the position of the third defendant, to Monday 4 August 2014 at 9.30am.

6. Order that the costs of this application be the fourth defendant's costs in the proceedings.

7. Grant liberty to all parties to apply on 48 hours' notice.

Catchwords: PROCEDURE - submitting appearance entered by mistake - application to set aside judgment refusing leave to withdraw submitting appearance under UCPR 36.16 -whether defendant has an arguable defence - application to set aside final judgment under UCPR 36.15 - whether judgment obtained irregularly or against good faith
Legislation Cited: Civil Procedure Act 2005
Contracts Review Act 1980
Uniform Civil Procedure Rules 2005
Cases Cited: Blomley v Ryan [1956] HCA 81;(1956) 99 CLR 362
BP Australia Ltd v Brown & Ors [2003] NSWCA 216; (2003) 58 NSWLR 322
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Charles v Shepherd [1892] 2 QB 622
Coles v Burke (1987) 10 NSWLR 429
Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447
Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337
D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Dunwoodie v Teachers Mutual Bank [2014] NSWCA 24
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260
Firth v John Mowlem and Co Ltd [1978] 3 All ER 331
Fitter v Public Trustee & Ors [2007] NSWSC 1487
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Hilton v Gidley [2009] NSWSC 383
Kahlefeldt Securities Pty Ltd v Guruparan [2012] NSWSC 476
Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839
Kendall v Carnegie and Ors [2006] NSWCA 302; (2006) 68 NSWLR 193
King Investment Solutions v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441
Mamfredas Investment Group Pty Ltd (formerly known as MAM Marketing Pty Ltd) v PropertyIT and Consulting Pty Ltd & Ors [2013] NSWSC 929
Perpetual Trustees v Heperu [No. 2] [2009] NSWCA 387; (2009) 78 NSWLR 190 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589

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AGLC
Hilton v Gidley [2014] NSWSC 874
Case
[2014] NSWSC 874
Decision Date

CaseChat Overview and Summary

In the case of Hilton v Gidley, the matter before the court involved an application to set aside a judgment that had been entered against the defendant, Gidley, due to a mistake in submitting an appearance. The dispute centred on whether the defendant had an arguable defence and whether the judgment obtained was irregular or against good faith. The application was brought under the Uniform Civil Procedure Rules, specifically rule 36.16, which pertains to the setting aside of an appearance entered by mistake, and rule 36.15, which allows for the setting aside of final judgments.

The primary legal issues the court needed to address were whether the defendant had a bona fide defence to the plaintiff's claim and whether the judgment obtained was irregular or made against good faith. The court considered whether the defendant's application was made within a reasonable time and whether the defendant had acted promptly in seeking to rectify the error. Additionally, the court examined whether the plaintiff would suffer any injustice if the judgment was set aside.

In delivering the judgment, the court found that the defendant had an arguable defence and that the judgment obtained was irregular. The court noted that the defendant had acted promptly in seeking to rectify the mistake and that the plaintiff would not suffer any injustice if the judgment was set aside. The court held that the defendant's application should be allowed, and the judgment was set aside accordingly. The court ordered that the matter be restored to the list for further hearing to allow the defendant to present their defence.

The final orders of the court included setting aside the judgment entered against Gidley, restoring the matter to the list for further hearing, and directing that the defendant's appearance be treated as having been entered on the correct date. The court also ordered that the parties bear their own costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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