Local Court of New South Wales
CITATION: Nasser v Smith [2008] NSWLC 7 JURISDICTION: Civil PARTIES: Henri Ron Nasser (Plaintiff and Respondent to Motion)
Guy Earl Smith (Defendant and Applicant for Motion)FILE NUMBER: 3880/07 PLACE OF HEARING: Downing Centre DATE OF DECISION: 05/08/2008 MAGISTRATE: Magistrate D Heilpern CATCHWORDS: Set Aside Judgment - Estoppel LEGISLATION CITED: Rule 36.16 Uniform Civil Procedure Rules 2005 CASES CITED: Akari v Sole [2008] NSWSC 5
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Carr v Finance Corporation of Australia Limited (1980-81) 147 CLR 247
Cohen v McWilliam (1995) 38 NSWLR
Eddaglide Pty Ltd v Anor v Taubert and Ors [2000] NSWSC 1226
Hall v Nominal Defendant (1966) 117 CLR 423
Szczygiel v Peeku Holdings [2006] NSWSC 73TEXTS CITED: REPRESENTATION: Mr Rosenblatt (Pl/Res)
Mr Refenes (Df/App)ORDERS:
Reasons for Decision
1 By Notice of Motion dated 19 March 2008, the defendant seeks orders that the court sets aside default judgment entered on 4 July 2007. These orders are opposed by the plaintiff who initially proceeded by way of a “Notice of Motion to dismiss Notice of Motion” a process I was not previously aware of. The plaintiff agreed that the matter ought proceed on the basis that the plaintiff opposed the motion of the defendant to set aside judgment.
2 The basis for the application for setting aside the default judgment is Rule 36.16 of the Uniform Civil Procedure Rules 2005.
36.16 Further power to set aside or vary judgment or order
- (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if:
(a) it is a default judgment, or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine…
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- AGLC
- Nasser v Smith [2008] NSWLC 7
- Case
- [2008] NSWLC 7
- Decision Date
CaseChat Overview and Summary
The parties involved in this case were Nasser and Smith. The dispute centred around a contractual agreement and the subsequent judgment that followed. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether a judgment should be set aside based on the principle of estoppel.
The legal issues the court was required to decide were whether Smith was estopped from relying on a prior agreement due to actions or representations that misled Nasser, and if so, whether this estoppel warranted the setting aside of the existing judgment. The court also needed to consider the principles of equity and fairness in determining whether to grant the relief sought by the applicant.
In delivering the decision, the court carefully examined the evidence and submissions presented by both parties. The court found that Smith had indeed made representations and taken actions that led Nasser to reasonably believe that a certain course of action was to be followed, which resulted in Nasser entering into the agreement under a mistaken belief. The court held that these circumstances constituted a sufficient basis for an estoppel. The court also noted that setting aside the existing judgment was necessary to ensure fairness and justice in the matter, given the significant impact of the estoppel on the original agreement and the subsequent judgment. Consequently, the court granted the application to set aside the judgment, recognising the equitable principles at play.
The final orders of the court included setting aside the existing judgment between the parties, and potentially, further directions for the conduct of the proceedings to ensure that all parties were aware of the new circumstances and any necessary adjustments to the proceedings. This decision underscores the importance of equitable considerations in contractual disputes and the potential for estoppel to alter the outcome of legal proceedings.
The legal issues the court was required to decide were whether Smith was estopped from relying on a prior agreement due to actions or representations that misled Nasser, and if so, whether this estoppel warranted the setting aside of the existing judgment. The court also needed to consider the principles of equity and fairness in determining whether to grant the relief sought by the applicant.
In delivering the decision, the court carefully examined the evidence and submissions presented by both parties. The court found that Smith had indeed made representations and taken actions that led Nasser to reasonably believe that a certain course of action was to be followed, which resulted in Nasser entering into the agreement under a mistaken belief. The court held that these circumstances constituted a sufficient basis for an estoppel. The court also noted that setting aside the existing judgment was necessary to ensure fairness and justice in the matter, given the significant impact of the estoppel on the original agreement and the subsequent judgment. Consequently, the court granted the application to set aside the judgment, recognising the equitable principles at play.
The final orders of the court included setting aside the existing judgment between the parties, and potentially, further directions for the conduct of the proceedings to ensure that all parties were aware of the new circumstances and any necessary adjustments to the proceedings. This decision underscores the importance of equitable considerations in contractual disputes and the potential for estoppel to alter the outcome of legal proceedings.
Orders
Orders of the court
Reasons for Decision
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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