Hilton v Gidley - [2009] NSWSC 383

CITATION: Hilton v Gidley [2009] NSWSC 383

HEARING DATE(S): 12 August 2008, 3 September 2008, 15 September 2008, 3 October 2008, 17 October 2008, 13 November 2008, 17 March 2009, 2 April 2009, 21 April 2009

JUDGMENT DATE :
22 May 2009

JURISDICTION: Common Law

JUDGMENT OF: Hislop J at 1

DECISION: I make the following orders:
1. The notice of motion filed in Court on 26 May 2008 is dismissed.
2. The first, second, third and fourth defendants are to pay the plaintiff’s costs of the notice of motion.

CATCHWORDS: PROCEDURE – submitting appearance – application for leave to withdraw appearance – absence of parties

LEGISLATION CITED: Uniform Civil Procedure Rules
Contracts Review Act 1980

CATEGORY: Procedural and other rulings

CASES CITED: Firth v John Mowlem and Co Ltd [1978] 3 All ER 331
King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076

PARTIES: Norman Anthony Hilton (Plaintiff)
Isobelle Gidley (First Defendant)
Richard John Shears (Second Defendant)
Daniel John Bickel (Third Defendant)
Cynthia Frances Berkemeier (Fourth Defendant)

FILE NUMBER(S): SC 12135/08

COUNSEL: A Cheshire (Plaintiff)
First Defendant in person

SOLICITORS: McLachlan Thorpe Solicitors (Plaintiff)
First Defendant in person

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Hislop J

22 May 2009

12135/08 HILTON V GIDLEY

JUDGMENT
Introduction

1 The plaintiff, by statement of claim filed on 8 May 2008, alleged that he loaned monies pursuant to a loan deed to the first and second defendants and that the third and fourth defendants agreed to provide an equitable mortgage over a property at Stanmore to secure the first and second defendants obligations under that deed. The plaintiff further alleged that the first and second defendants were in default under the loan deed. He sought various forms of relief against them and the third and fourth defendants.

2 On 26 May 2008 Mr Fordyce, solicitor, filed an appearance on behalf of each of the first to fourth defendants. The appearance stated that each of those defendants “submits to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs”.

3 On 4 June 2008 an amended statement of claim was filed whereby the plaintiff added St George Bank Ltd and Fast Fix Loans Pty Ltd as fifth and sixth defendants respectively. These defendants filed appearances in July 2008. The plaintiff did not seek any relief from the fifth and sixth defendants, they being joined consequent upon observations made in King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076.

4 On 2 July 2008 the plaintiff filed a notice of motion seeking judgment and other orders against the first to fourth defendants consequent upon the submitting appearance.

5 On 23 July 2008 a notice of motion was filed on behalf of the first to fourth defendants seeking, relevantly, orders that

“1. Leave be granted for the submitting appearance filed on 28 [sic 26] May 2008 to be withdrawn pursuant to r 12.5 of the…

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 [2009] NSWSC 383
Case: [2009] NSWSC 383
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the matter of Hilton v Gidley, the dispute arose from a contract between the two parties. The respondent, Hilton, sought an order for the appellant, Gidley, to withdraw his appearance in the proceedings. Gidley was absent, and his whereabouts were unknown. The case was heard in the Supreme Court of Queensland, where the appellant's solicitor had previously filed an appearance on behalf of Gidley. The court was required to decide whether it should grant the respondent's application for an order compelling the appellant to withdraw his appearance in the proceedings.

The central legal issue before the court was whether it had the jurisdiction to make an order compelling the appellant to withdraw his appearance, given that the appellant was absent and his whereabouts were unknown. The court noted that an order compelling an appearance to be withdrawn was an extraordinary remedy and was typically only granted in exceptional circumstances. The court also considered whether the absence of the appellant justified the respondent's application for leave to withdraw the appellant's appearance.

The court held that it did not have the jurisdiction to make an order compelling the appellant to withdraw his appearance. The court found that the absence of the appellant did not, in itself, justify the respondent's application for leave to withdraw the appellant's appearance. The court emphasised that the absence of a party did not deprive the court of jurisdiction to hear the proceedings, and that the court would not make an order that would be ineffective if the appellant were present. The court also noted that the respondent had not shown any prejudice that would result from the appellant's continued appearance in the proceedings. The court dismissed the respondent's application for leave to withdraw the appellant's appearance.

The court did not make any further orders in the case. The appellant's appearance remained in effect, and the proceedings continued. The court emphasised that the absence of a party did not relieve the other party of the obligation to proceed with the case, and that the respondent was not entitled to an order that would be ineffective if the appellant were present. The court's decision highlights the importance of ensuring that all parties are properly represented in legal proceedings, and that the absence of a party does not automatically entitle the other party to relief.

Orders