Shields v Zakos - [2008] NSWSC 760

CITATION: Shields v Zakos [2008] NSWSC 760

HEARING DATE(S): 17 March 2008

JUDGMENT DATE :
25 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION: (i) The appeal against the judgment of Culver LCM of 12 October 2007 be allowed;
(ii) The judgment of Culver LCM of 12 October 2007, in matters 167/2007 and 266/2007, be quashed;
(iii) An order in the nature of mandamus requiring the Local Court to hear and determine, in accordance with law, the motions filed by the plaintiff herein, in matters 167/2007 and 266/2007, seeking to set aside the judgments entered therein on 30 August 2007;
(iv) The defendant shall pay the plaintiffs’ costs of and incidental to these proceedings, as agreed or assessed;
(v) The defendant shall, to the extent otherwise eligible, be granted an indemnity certificate pursuant to the Suitors’ Fund Act 1951.

CATCHWORDS: APPEAL – error of law – misconstruction of power – infection of discretion - PRACTICE – default judgment – motion to set aside – dismissal without proper opportunity of adducing evidence – refusal of adjournment.

LEGISLATION CITED: Civil Procedure Act 2005
Residential Tenancies Act 1987
Suitors' Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Director of Public Prosecutions v Gursel Ozakca and Anor [2006] NSWSC 1425
DJL v Central Authority [2000] HCA 17; 201 CLR 226
Hall Chadwick Pty Ltd v Doyle [2006] NSWSC 1195
Keramianakis & Anor v Regional Publishers Pty Ltd [2007] NSWCA 375
Laws v GWS Machinery Pty Ltd & Anor; Laws v GWS Machinery Pty Ltd & Anor (No 4) [2008] NSWSC 453
Priddle v Fisher [1968] 1 WLR 1478
Sullivan v Department of Transport (1978) 20 ALR 323
Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517

PARTIES: Gail Anne Shields (First Plaintiff)
Victor Warren Ollis (Second Plaintiff)
Christopher Alexander Zakos (Defendant)

FILE NUMBER(S): SC 15660/2007

COUNSEL: C J Dibb (Plaintiffs)
J L Gruzman (Defendant)

SOLICITORS: - (Plaintiffs)
Burridge & Legg Solicitors (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 167/2007; 266/2007

LOWER COURT JUDICIAL OFFICER : Culver LCM

LOWER COURT DATE OF DECISION: 12 October 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

25 JULY 2008

15660/07 Gail Anne Shields & Anor v Christopher Alexander Zakos
JUDGMENT

1 HIS HONOUR: Gail Anne Shields is or was a tenant of Christopher Alexander Zakos. A dispute arose as to their respective rights. It is said that rent was not paid by Ms Shields for a time which includes a period during which, according to Ms Shields, Ms Shields was locked out of the premises in question. The premises are at Ettalong Beach. As a consequence of the dispute, Ms Shields alleges that Mr Zakos has unlawfully terminated the lease and illegally entered into possession of the premises in question.

2 In proceedings for payment of arrears of rent in the Local Court, judgment was entered in default and the motion to set the judgment aside was dismissed. Ms Shields now appeals…

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 Shields v Zakos

Details

AGLC: Shields v Zakos [2008] NSWSC 760
Case: [2008] NSWSC 760
Decision Date: 25 July 2008

CaseChat Overview and Summary

The appeal in Shields v Zakos involved a dispute over the misapplication of a legal power by a court, leading to an infection of discretion. The parties involved were Shields, the appellant, and Zakos, the respondent. The nature of the dispute was centered on the interpretation and application of legal principles concerning the powers of a court and the procedural fairness in granting default judgments and motions to set aside such judgments. The case was heard in the relevant appellate court.

The central legal issues the court needed to address were whether the lower court had misconstrued its power and infected its discretion by failing to provide the appellant with a proper opportunity to adduce evidence before dismissing a motion to set aside a default judgment, and whether the refusal to grant an adjournment was justified under the circumstances. The court was required to examine the procedural fairness and the application of judicial discretion in the context of default judgments and motions to set aside.

In its reasoning, the court found that the lower court had indeed erred in its application of the law. It held that the lower court misconstrued its power and infected its discretion by not allowing the appellant a fair opportunity to present evidence. The refusal to grant an adjournment without considering the appellant's request for additional time was also deemed improper. The court concluded that the lower court's actions deprived the appellant of a fair hearing, thus constituting a miscarriage of justice. Consequently, the appeal was allowed, and the lower court's decision was quashed.

The final orders of the court were that the decision of the lower court dismissing the motion to set aside the default judgment was set aside, and the matter was remitted back to the lower court for further proceedings in accordance with the court's findings and directions.

Orders