Lawteal Pty Limited v Ofo - [2005] NSWSC 984

CITATION:
Lawteal Pty Limited v Ofo [2005] NSWSC 984

HEARING DATE(S): 28 September 2005

JUDGMENT DATE :

11 October 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Malpass at 1

DECISION:
The notice of motion is dismissed; the defendant is to pay the costs of the notice of motion.

CATCHWORDS:
Application to set aside default judgment - dismissal order made by Registrar (by consent or unopposed) - defendant brings application for review - attempt to turn review into a fresh hearing of application relying on different material - denial of natural justice - the nature of the review process and the admission of further evidence - it is received to facilitate the review process.

LEGISLATION CITED:
Uniform Civil Procedure Rules 2005, Rule 45.19

CASES CITED:
Beaufort Air-Sea Equipment Pty Limited v Emhart Australia Pty Limited, unreported, NSWSC 18 December 1992

PARTIES:
Lawteal Pty Limited (Plaintiff)
Talilotu Ofo (Defendant)

FILE NUMBER(S):
SC 10118/05

COUNSEL:
Mr A Rogers (Plaintiff)
Ms D Banwell (Defendant)

SOLICITORS:
R L Kremnizer & Co (Plaintiff)
Liverpool Legal Aid Office (Defendant)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
10118/05

LOWER COURT JUDICIAL OFFICER :
Assistant Registrar Howe

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

11 October 2005

10118 of 2005 Lawteal Pty Limited v Talilotu Ofo

JUDGMENT

1 His Honour: The defendant is the owner of 21 Endeavour Street, Ruse (the property). She entered into a lending transaction with the plaintiff which was secured by mortgage over the property. It was of the nature of a refinancing exercise with the advance being used, inter alia, to pay out existing debts.

2 She used the services of a mortgage broker. A solicitor (Mr Price) acted for her in respect of the transaction.

3 The defendant made a default under the mortgage. The plaintiff commenced these proceedings seeking, inter alia, judgment in possession and for a monetary sum. Default judgment was entered in respect of the claim for possession.

4 The defendant brought an application in these proceedings. It sought, inter alia, a stay and/or setting aside of the default judgment. It was fixed for a hearing to take place on 27 May 2005. Prior to the hearing, the defendant obtained a grant of legal aid and acquired the services of a solicitor and barrister.

5 The application came on for hearing before Assistant Registrar Howe. Both parties were represented by counsel (Mr Rogers appeared for the plaintiff and Ms Banwell appeared for the defendant).

6 The hearing commenced. It was contemplated that the application to set aside the judgment would involve a very narrow point and involve just short legal argument about whether or not there was an arguable defence (it concerned s80 of the Consumer Credit Code).

7 The defendant read an affidavit sworn by Christopher Hynes (the solicitor for the defendant). It was also sought to read an affidavit prepared by the defendant herself and sworn on 13 May 2005. Unfortunately, it had…

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.

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Details

Case: [2005] NSWSC 984
Decision Date: 11 October 2005

CaseChat Overview and Summary

Lawteal Pty Limited brought an action against Ofo, which was a default judgment. The defendant subsequently sought to set aside the default judgment. The application was dismissed by the Registrar, and Ofo then applied for a review of that decision. The primary legal issue before the court was whether the review process could be used as an opportunity to present a new application with different evidence, and if the admission of such evidence could be considered a denial of natural justice. The court considered the nature of the review process, which was designed to assess whether there were any errors in the original decision-making process, and that the evidence was received to facilitate this review, not to allow for a fresh hearing of the application.

The court held that the review was not intended to be a new hearing of the application. Rather, it was a limited reconsideration of the decision made by the Registrar. The court found that there was no denial of natural justice in the admission of further evidence, as it was relevant to the review process. The evidence was received to enable the court to assess whether there had been any errors in the original decision-making process. The court determined that the review process was not an opportunity to introduce new evidence and reargue the case. The application for review was dismissed, and the original dismissal order made by the Registrar was upheld.

The court's decision underscores the limited scope of a review process in such matters. It emphasised that the review was not intended to be a fresh hearing of the application, and that the admission of further evidence was to facilitate the review, not to allow for a new argument to be presented. The court's ruling confirms that the review process is a mechanism for ensuring that the original decision-making process was conducted correctly, rather than a means to reargue the case.

Orders