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
[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.
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Details
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.