Newberry v Jensen - [2025] NSWSC 1002

Supreme Court

New South Wales

Medium Neutral Citation: Newberry v Jensen [2025] NSWSC 1002
Hearing dates: 1 September 2025
Date of orders: 1 September 2025
Decision date: 01 September 2025
Jurisdiction: Common Law
Before: N Adams J
Decision:
1. Notice of Motion is dismissed.
2. The applicant Steen Jensen is to pay the costs of the motion on the ordinary basis.

Catchwords:
CIVIL PROCEDURE — Originating process — notice of motion to set aside — sale of land by local council for non-payment of rates — proceedings for possession of land — proper service — final orders already made — notice of motion dismissed
CIVIL PROCEDURE — Default judgment — setting aside — applicant actively chose not to participate in the proceedings — no bona fide defence on merits
CONSTITUTIONAL LAW — Notice to Attorneys General — Judiciary Act 1903 (Cth) s 78B — whether cause involves a matter arising under the Constitution or concerning its interpretation — Pseudolaw

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 6
Judiciary Act 1903 (Cth), s 78B
Local Government Act 1993 (NSW), s 713
Residential Tenancies Act2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 6.8

Cases Cited:
Amrit Lal Narain v Parnell (1986) 9 FCR 479; 20 A Crim R 417
Dai v Zhu [2013] NSWCA 412
Danielsen v Onesteel Manufacturing Pty Ltd (2009) 224 FLR 319; [2009] SASC 56
Fejo v Northern Territory (1998) 195 CLR 96; [1998] HCA 58

Category: Principal judgment
Parties: Steen Jensen (Applicant/Defendant) (Self represented)
John Francis Newberry (Respondent/Plaintiff)
Elise Newberry (Respondent/Plaintiff)
Representation:
Counsel:
Mr D Currie (Respondents)
Solicitors:
Jennings & Kneipp Lawyers (Respondents)

File Number(s): 2024/00365604
Publication restriction: Nil.

JUDGMENT (REVISED FROM EX TEMPORE)

On 24 May 2024, Coffs Harbour City Council (“the Council”) sold the premises at 43 Pullen Street, Woolgoolga NSW (Lot 91 in Deposited Plan 1100962) (“the property”) at a public auction pursuant to s 713 of the Local Government Act 1993 (NSW). That section provides for the sale of land for unpaid rates and charges.
At the date of the auction, Mr Steen Jensen and Ms Jillian Frances Pearce were the registered proprietors of the property: Mr Jensen owned 97% of the property and Ms Pearce owned 3% as tenants in common. The successful bidders at the auction were John Newberry and Elise Newberry. The property was not sold with vacant possession.
Mr Jensen refused to leave the property and the Newberrys successfully brought proceedings in this Court for possession. Mr Steen left the property on 16 June 2025 when Sheriff officers attended the property.
On 10 July 2025, Mr Jensen filed a Notice of Motion in the possession proceedings, despite the fact that he had previously played no part in them. Some of the orders sought were difficult to comprehend. I have re-worded them to make them comprehensible, and it seems to me that the motion can be summarised as follows:

Mr Jensen moves to have the originating process be set aside.

Mr…

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: [2025] NSWSC 1002
Decision Date: 01 September 2025

CaseChat Overview and Summary

In Newberry v Jensen, the respondent, Mr Jensen, applied to set aside a default judgment in relation to proceedings for possession of land. The local council had sold the land due to non-payment of rates, and Mr Jensen was the subsequent purchaser. The applicant, Ms Newberry, argued that the original proceedings were improperly served and sought to set aside the default judgment. The matter was heard in the Supreme Court of Queensland.

The central legal issues were whether the notice of motion to set aside was valid, particularly given the final orders had already been made, and whether the default judgment could be set aside due to the applicant's active choice not to participate in the proceedings and lack of a bona fide defence. Additionally, the court had to determine whether the cause involved a matter arising under the Constitution or concerning its interpretation for the purposes of providing notice to the Attorneys General under section 78B of the Judiciary Act 1903 (Cth).

The court held that the notice of motion to set aside was dismissed as it was an attempt to re-litigate a matter that had already been concluded. The applicant's inaction and lack of a bona fide defence further supported the refusal to set aside the default judgment. The court found that the proceedings did not involve a matter arising under the Constitution or concerning its interpretation, and therefore, no notice to the Attorneys General was required. Consequently, the notice of motion was dismissed.

The final orders confirmed the dismissal of the notice of motion, affirming the default judgment and the sale of the land by the local council. The court emphasized the importance of proper service of proceedings and the consequences of not participating in legal processes.

Orders