Leeming JA at [1] Payne JA at [59] McCallum JA at [156]
Decision:
(1) Leave to appeal refused; (2) Applicant to pay the costs of the respondent.
Catchwords:
CIVIL PROCEDURE – undefended judgment – setting aside – where applicant did not appear at hearing of proceedings – whether primary judge erred in describing principles for setting aside an undefended judgment under r 36.16(2)(b) of Uniform Civil Procedure Rules – where applicant sought to rely on Vacuum Oil Pty Co Ltd v Stockdale – whether Vacuum Oil applied to application to set aside undefended judgment under UCPR – whether in 1942 principles for setting aside an undefended judgment different at common law and in equity – whether, with introduction of Supreme Court Act in 1972, a single set of rules applied at common law and in equity – no House v The King error shown
CIVIL PROCEDURE – undefended judgment – setting aside – whether primary judge mischaracterised the nature and strength of applicant’s proposed defence – no House v The King error shown
CIVIL PROCEDURE – undefended judgment – setting aside – whether prejudice caused to the respondent in setting aside orders – whether prejudice can be remedied by costs order – no House v The King error shown
CIVIL PROCEDURE – undefended judgment – setting aside – whether adequate explanation offered for applicant’s non-appearance at hearing and delay – no House v The King error shown
[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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AGLC
Pham v Gall [2020] NSWCA 116
Case
[2020] NSWCA 116
Decision Date
CaseChat Overview and Summary
The applicant, Ms. Pham, sought to set aside an undefended judgment entered against her in favour of the respondent, Mr. Gall. The proceedings concerned the setting aside of this judgment, and the appeal was heard by Leeming, Payne and McCallum JJA of the Court of Appeal of the Supreme Court of New South Wales.
The primary legal issues before the Court of Appeal were whether the primary judge erred in their application of the principles for setting aside an undefended judgment under rule 36.16(2)(b) of the Uniform Civil Procedure Rules (NSW). Specifically, the court considered whether the applicant was entitled to rely on the principles established in *Vacuum Oil Pty Ltd v Stockdale*, whether those principles differed at common law and in equity in 1942, and whether a single set of rules applied following the introduction of the *Supreme Court Act 1972* (NSW). Further issues included whether the primary judge mischaracterised the nature and strength of the applicant's proposed defence, whether any prejudice to the respondent could be remedied by a costs order, and whether the applicant provided an adequate explanation for her non-appearance at the hearing and the subsequent delay. The court also considered whether any error of the type identified in *House v The King* had been demonstrated.
The Court of Appeal found no error on the part of the primary judge in relation to any of the issues raised. The court determined that the principles for setting aside an undefended judgment under the UCPR were correctly applied and that the applicant had not demonstrated any grounds for appeal.
Consequently, leave to appeal was refused, and the applicant was ordered to pay the costs of the respondent.