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Savage v Soloman

Savage v Soloman

Case [2019] NSWDC 223 4 June 2019

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Savage v Soloman [2019] NSWDC 223
Hearing dates: 16 May 2019
Date of orders: 04 June 2019
Decision date: 04 June 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The Notice of Motion filed 29 March 2018 is dismissed.
(2) The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed.

Catchwords: Practice and procedure – application to set aside judgment and final orders – Part 36.16(2)(b) of the Uniform Civil Procedure Rules – failure of defendant or legal representative of defendant to appear at the final hearing of the matter – adequacy of explanation for non-appearance – whether the defendant has an arguable defence on the merits – discretionary factors
Legislation Cited: Uniform Civil Procedure Rules, Part 36.16(2)(b)
Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Cases Cited: Blue Badge Insurance Australia Pty Ltd v Farnan (No 2) [2017] NSWSC 1688
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Integrated Growth Solutions Pty Ltd v Latesha Elizabeth Campbell (No 2) [2015] NSWSC 765
Li v Hanson Property Developments Pty Ltd [2016] NSWSC 1870
Northey v Bega Valley Shire Council [2012] NSWCA 28
O’Connor v Perry [2014] NSWSC 1386
Registrar of Aboriginal Corporations v Murkurni Women’s Aboriginal Corporation [1995] FCA 1413; (1995) 137 ALR 404; (1995) 58 FCR 125
Soloman v Savage [2018] NSWCA 249
University of Wollongong v Metwally (No 2) [1985] HCA 28
Van Gorp v Davy [2017] NSWCA 167
Category: Principal judgment
Parties: Robin Barry Savage
Phillip Aziz Soloman
Representation:
Counsel:
T J Davie (Plaintiff)
A Moutasallem (Defendant)
Solicitors:
Kennedy & Cooke Lawyers (Plaintiff)
Kazi & Associates (Defendant)

File Number(s): 2016/00137741

Judgment

Before the Court is a Notice of Motion filed by the defendant/applicant on 29 March 2018, seeking an order pursuant to Part 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) setting aside or varying a judgment of this Court entered on 27 November 2017. Other orders are also sought including that leave be granted to the defendant to re-open the proceedings to adduce further evidence and/or to file an Amended Defence and/or Cross-Claim. The application is opposed by the plaintiff/respondent.
Part 36.16 of the Uniform Civil Procedure Rules provides as follows:

“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 (other than a default judgment given in open court), 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…

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 Savage v Soloman

Details

AGLC: Savage v Soloman [2019] NSWDC 223
Case: [2019] NSWDC 223
Decision Date: 04 June 2019

CaseChat Overview and Summary

The case of Savage v Solomon involved a dispute between the plaintiff, Savage, and the defendant, Solomon. The matter came before the court for consideration of an application to set aside a judgment and final orders, following the defendant's failure to appear at the final hearing of the matter. The Uniform Civil Procedure Rules, specifically Part 36.16(2)(b), provided the legal framework for the court's consideration of the application. The primary issue before the court was whether the defendant or their legal representative had an adequate explanation for their non-appearance and whether the defendant had an arguable defence on the merits. The court also had to consider various discretionary factors in making its decision.

The court examined the reasons provided by the defendant for their non-appearance at the final hearing, as well as the merits of the defendant's potential defence. In doing so, the court assessed the strength of the defendant's case and whether there were any exceptional circumstances that warranted setting aside the judgment and final orders. After carefully considering the evidence and arguments presented, the court determined that the defendant's explanation for their non-appearance was insufficient and that there was no arguable defence on the merits. The court also found that the defendant's failure to appear was not due to any exceptional circumstances.

Based on the court's assessment of the evidence and arguments, it concluded that the application to set aside the judgment and final orders should be dismissed. The court held that the defendant had not provided an adequate explanation for their non-appearance at the final hearing and that there was no arguable defence on the merits. Furthermore, the court found that the discretionary factors did not favour setting aside the judgment and final orders. As a result, the court dismissed the Notice of Motion filed on 29 March 2018. The court also ordered that the defendant pay the plaintiff's costs of the Notice of Motion, as agreed or assessed.

Orders

Orders of the court

(1) The Notice of Motion filed 29 March 2018 is dismissed.

(2) The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Savage v Soloman [2019] NSWDC 223

Most Recent Citation

Savage v Soloman [2021] FedCFamC2G 278

Cases citing this decision · 2 of 2 shown

Savage v Soloman
[2021] FedCFamC2G 278 Para 22

…On 4 June 2019, the District Court dismissed the application with costs: Savage v Soloman [2019] NSWDC 223. The District Court: (a)accepted that it had power to set aside the judgment, as Mr Soloman had not appeared; (b)accepted that Mr Soloman’s defence raised a triable issue but said he did not have a strong or o…
Soloman v Savage
[2019] NSWCA 294

…pondent) File Number(s): 2019/177241 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 223 Date of Decision: 4 June 2019 Before: Dicker DCJ File Number(s): 2016/137741…

View all 2 citing cases →

Cases cited in this decision · 20 of 20 shown

Soloman v Savage
[2018] NSWCA 249 Para 28

…al justice by Blackmore DCJ. It was also submitted that the defendant had a legitimate expectation of an adjournment of the hearing: Soloman v Savage [2018] NSWCA 249 at [24]-[25]. It was not in issue before the Court of Appeal that Blackmore DCJ had an obligation to accord natural justice to the defendant extendin…
Blue Badge Insurance Australia Pty Ltd v Farnan (No 2)
[2017] NSWSC 1688 Para 21

…In Blue Badge Insurance Australia Pty Ltd v Farnan (No 2) [2017] NSWSC 1688, Parker J stated as follows at [14]-[18].…
Majak v Rose (No 5)
[2017] NSWCA 238

…“14. Recently, in Majak v Rose (No 5) [2017] NSWCA 238 the Court of Appeal considered an application under sub-r (1) where the applicant had filed a notice of motion within the time prescribed by sub-r (3A). The Court (Leeming JA, Simpson JA and Emmett AJA) said (at [12]): The rule is, like all rules made under the…
Van Gorp v Davy
[2017] NSWCA 167 Para 14

…In Van Gorp v Davy [2017] NSWCA 167, White JA with whom McColl JA agreed on this point, stated as follows at paragraphs [27]-[29]:…
Li v Hanson Property Developments Pty Ltd
[2016] NSWSC 1870 Para 20

…In Li v Hanson Property Developments Pty Ltd [2016] NSWSC 1870, Stevenson J stated as follows at [10]-[12]:…
Integrated Growth Solutions Pty Limited v Latesha Elizabeth Campbell (No 2)
[2015] NSWSC 765 Para 19

…In Integrated Growth Solutions Pty Ltd v Latesha Elizabeth Campbell (No 2) [2015] NSWSC 765, Kunc J followed the decision of Barrett JA in Northey . The application was made about one month after the final orders were made by the trial judge. There was no issue that the court had power to set aside the judgment ent…
O'Connor v Perry
[2014] NSWSC 1386 Para 15

…In O’Connor v Perry [2014] NSWSC 1386 Schmidt J noted at [18] that the general position that once an order disposing of proceedings is entered, it is beyond the Court’s recall, has been altered by exceptions under the Uniform Civil Procedure Rules .…
Northey v Bega Valley Shire Council
[2012] NSWCA 28 Para 10

…cant must contend with the proposition “that great value attaches to certainty in the outcome of litigation”: Northey v Bega Valley Shire Council [2012] NSWCA 28 at [14].…
Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd
[2010] FCA 755

…ng been told by the applicant that "nothing would happen" while negotiations continued: Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755; (c) where the applicant proceeded to obtain the order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation N…
Workers Compensation Nominal Insurer, in the matter of Deli Glenbrook Pty Limited (ACN 118 296 325)
[2010] FCA 380

…order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380; and (d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corpo…
Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd
[2006] NSWSC 226

…roceeded to obtain the order in the face of an agreement with the respondent not to do so: Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131; (b) where the applicant proceeded to obtain the order despite the respondent's accountant having been told by the applicant that…
Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation
[1995] FCA 538

…nbrook Pty Ltd [2010] FCA 380; and (d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404.”…
Metwally v University of Wollongong
[1985] HCA 28

…relevant to quote what was said by Gibbs CJ, Mason J, Wilson J, Brennan J and Dawson J in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 482-3: “It may be assumed, without deciding, that the court has power to vacate its order of 22 November 1984, notwithstanding that it has been perf…
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd
[1982] HCA 51

…gainst the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v. Codelfa Construction Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29, at p 38.”…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 33

…ard on behalf of the defendant on the application satisfied the test stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129. There, Barwick CJ considered whether proceedings should be summarily dismissed and held that a matter should be allowed t…
Cameron v Cole
[1944] HCA 5 Para 8

…In Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Rich J stated as follows at 589:…
Owners of SS Kalibia v Wilson
[1910] HCA 77

…“12. I turn, therefore, to rule 36.16(2)(b) which reflects what Griffith CJ, in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694, called "an elementary rule of justice". 13. It is not disputed that Ms Northey was absent (and was not represented) on 21 March 2011 when the order was made. But…
House v R
[1936] HCA 40

…ant’s failure to appear. Such a decision cannot be characterised as unreasonable or plainly unjust ( House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40). Particularly is that so given the procedure available to a party where an order is made in the party’s absence, to seek to have the orders set aside unde…
His Honour referred to Registrar of Aboriginal Corporations v Murkurni Women’s Aboriginal Corporation
[1995] FCA 1413 Para 22

…d to protect the respondent's interests”. His Honour referred to Registrar of Aboriginal Corporations v Murkurni Women’s Aboriginal Corporation [1995] FCA 1413; (1995) 137 ALR 404; (1995) 58 FCR 125. In that case, Nicholson J in the Federal Court of Australia set aside a winding up order where her Honour was satis…
House v The King
63 WN 176

…ere there was no explanation for the applicant’s failure to appear. Such a decision cannot be characterised as unreasonable or plainly unjust ( House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40). Particularly is that so given the procedure available to a party where an order is made in the party’s absence, to seek…

Legislation cited in this decision · 3

Civil Procedure Act 2005 (NSW)
2 mentions (from Para 8)
Contracts Review Act 1980 (NSW)
1 mention (from Para 10)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Savage v Soloman [2019] NSWDC 223
Hearing dates:	16 May 2019
Date of orders:	04 June 2019
Decision date:	04 June 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The Notice of Motion filed 29 March 2018 is dismissed. (2) The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed.
Catchwords:	Practice and procedure – application to set aside judgment and final orders – Part 36.16(2)(b) of the Uniform Civil Procedure Rules – failure of defendant or legal representative of defendant to appear at the final hearing of the matter – adequacy of explanation for non-appearance – whether the defendant has an arguable defence on the merits – discretionary factors
Legislation Cited:	Uniform Civil Procedure Rules, Part 36.16(2)(b) Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW)
Cases Cited:	Blue Badge Insurance Australia Pty Ltd v Farnan (No 2) [2017] NSWSC 1688 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 Integrated Growth Solutions Pty Ltd v Latesha Elizabeth Campbell (No 2) [2015] NSWSC 765 Li v Hanson Property Developments Pty Ltd [2016] NSWSC 1870 Northey v Bega Valley Shire Council [2012] NSWCA 28 O’Connor v Perry [2014] NSWSC 1386 Registrar of Aboriginal Corporations v Murkurni Women’s Aboriginal Corporation [1995] FCA 1413; (1995) 137 ALR 404; (1995) 58 FCR 125 Soloman v Savage [2018] NSWCA 249 University of Wollongong v Metwally (No 2) [1985] HCA 28 Van Gorp v Davy [2017] NSWCA 167
Category:	Principal judgment
Parties:	Robin Barry Savage Phillip Aziz Soloman
Representation:	Counsel: T J Davie (Plaintiff) A Moutasallem (Defendant) Solicitors: Kennedy & Cooke Lawyers (Plaintiff) Kazi & Associates (Defendant)
File Number(s):	2016/00137741