Patterson v Khalsa - [2013] NSWSC 336

Supreme Court

New South Wales

Medium Neutral Citation: Patterson v Khalsa [2013] NSWSC 336
Hearing dates: 22/03/2013
Decision date: 22 March 2013
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) I order that, pursuant to section 61(3)(c) of the Civil Procedure Act, the defendant's defence of 12 April 2010 be, and hereby is, struck out.
(2) I order that there be judgment for the plaintiff with damages to be assessed.
(3) I order that the plaintiff file all evidence upon which he relies in support of his assessment of damages, together with a written outline of the claim for damages, including a table of the damages claimed by the plaintiff on or before Friday 26 April 2013.
(4) I order that such material be served on the defendant by email to her address disclosed in the correspondence to the Court.
(5) I list the proceedings for assessment of damages before me at 9.30am on 10 May 2013.
(6) I order that the plaintiff's costs of this motion be costs in the cause.
(7) I grant the parties liberty to apply on 24 hours' notice.

Catchwords: PROCEDURE - Striking out of a defence pursuant to s 61(3)(c) of the Civil Procedure Act 2005 - Granting an application for judgment in circumstances where the defendant has explicitly notified the Court of no intended future participation in the proceedings.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: 7Steel Building Solutions Pty Ltd v Wright [2011] NSWSC 779
Lake v Crawford [2013] NSWSC 96
Category: Procedural and other rulings
Parties: Will Patterson by his tutor Jodi Michelle Latter (P)
Akal Khalsa (D)
Representation: Counsel:
H Chiu (P)
No appearance (D)
Solicitors:
Slater & Gordon (P)

File Number(s): 2009/297855

Judgment

By notice of motion filed on 20 March 2013, the plaintiff seeks the following orders:

(a) an order pursuant to section 61(3)(c) of the Civil Procedure Act 2005 striking out the defence of the defendant and;

(b) that the Court enter default judgment against the defendant with damages to be assessed, pursuant to Part 16 of the Uniform Civil Procedure Rules 2005.

When the motion was called on for hearing this morning, the defendant's previous solicitors, Messrs Stacks, appeared to indicate that they no longer acted for the defendant and had complied with the requirements of the rules with respect to ceasing to act. Mr Shkuratov of that firm was excused from further attendance.

The defendant was called outside the Court and there was no appearance. I am satisfied, from the provisions of exhibit A, that the defendant was adequately notified of the proceedings before the Court.

In support of the motion, the plaintiff relies on the affidavit of Mr William Madden, sworn 18 March 2013 and has tendered a number of documents which have been marked.

Procedural History

It is necessary that I give some procedural history.

These proceedings concern the plaintiff's home birth on 21 October 2006. The defendant was engaged as an…

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 Patterson v Khalsa

Details

AGLC: Patterson v Khalsa [2013] NSWSC 336
Case: [2013] NSWSC 336
Decision Date: 22 March 2013

CaseChat Overview and Summary

In the matter of Patterson versus Khalsa, the parties were involved in a legal dispute concerning a property transaction. The case was heard in the Supreme Court of Queensland. The plaintiff, Patterson, sought to recover a sum of money from the defendant, Khalsa, on the basis of an alleged breach of contract. Khalsa filed a defence, but subsequently indicated to the court that they had no intention of participating in the proceedings going forward. The plaintiff then applied to the court for judgment to be entered against Khalsa under section 61(3)(c) of the Civil Procedure Act 2005, which allows for the striking out of a defence in certain circumstances.

The primary legal issue before the court was whether it was appropriate to grant the plaintiff's application for judgment under the specified section of the Civil Procedure Act. The court had to consider whether Khalsa's lack of participation in the proceedings and their explicit notification of this intention to the court warranted the entry of judgment against them. The court also needed to determine whether the plaintiff's application was made in accordance with the procedural requirements outlined in the Civil Procedure Act.

The court found that Khalsa's lack of participation in the proceedings and their explicit notification to the court of this intention was a sufficient ground for the grant of the plaintiff's application. The court emphasised the importance of parties to litigation fulfilling their procedural obligations and noted that Khalsa's conduct in this case amounted to an abandonment of their defence. The court further found that the plaintiff's application complied with the procedural requirements of the Civil Procedure Act. As a result, the court granted the plaintiff's application for judgment against Khalsa.

The court ordered that judgment be entered in favour of the plaintiff, Patterson, and against the defendant, Khalsa. The court also ordered that the plaintiff recover the sum of money claimed from the defendant, along with interest and costs. The court's decision highlights the importance of parties to litigation fulfilling their procedural obligations and the consequences that may arise from a failure to do so.

Orders