McHugh v Eastern Star Gas Ltd (No 2)

McHugh and others (the applicants) sought to set aside or vary an order made by Hulme J on 3 June 2011, which had been entered pursuant to Rule 36.11 of the Uniform Civil Procedure Rules 2005 (NSW). Eastern Star Gas Ltd was the respondent to the application. The proceedings were heard in the Court of Appeal of New South Wales by Bathurst CJ and Macfarlan JA.

The primary legal issue before the Court of Appeal was whether it had the power to set aside or vary the order of Hulme J, and if so, whether it should exercise that power. This involved considering the scope of Rule 36.17 of the Uniform Civil Procedure Rules 2005, which governs the setting aside and variation of judgments and orders, and the principles applicable to such applications, including the time limits prescribed by Rule 36.16.

The Court of Appeal determined that it possessed the power to set aside the order of Hulme J. It reasoned that the order of Hulme J was made in circumstances where the applicants had not been afforded a proper opportunity to be heard on the substantive issues. Consequently, the Court found that it was appropriate to exercise its discretion to set aside that order. The Court also dismissed a cross-application brought by Eastern Star Gas Ltd and ordered that Eastern Star Gas Ltd pay the costs of the cross-respondents in relation to that cross-application. The applicants were granted leave to file a Notice of Appeal within seven days of the making of the Court's orders.