Pham v Gall

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.