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Short v Burn

Short v Burn

Case [2012] NSWSC 695 26 June 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Short v Burn [2012] NSWSC 695
Hearing dates: 13 June 2012
Decision date: 26 June 2012
Before: Adamson J
Decision:
(1) Extend the time for the plaintiff's application for leave to appeal to 20 March 2012.
(2) Grant leave to the plaintiff to appeal the order made by the Court below on 5 October 2011 that the plaintiff pay the defendant's costs of the motion filed on 17 August 2011 in the sum of $3,000.
(3) Vary the order made by the Court below on 5 October 2011 that the plaintiff pay the defendant's costs of the motion filed on 17 August 2011 in the sum of $3,000 by substituting for the sum of $3,000, the sum of $1,500.
(4) Grant leave to the plaintiff to appeal the order made by the Court below on 10 November 2011 dismissing the plaintiff's notice of motion filed on 20 October 2011 to set aside default judgment and the consequential order that the plaintiff pay the defendants costs of the motion.
(5) Set aside the order made by the Court below on 10 November 2011 dismissing the plaintiff's notice of motion filed on 20 October 2011 to set aside default judgment.
(6) Vary the order made by the Court below on 10 November 2011 that the plaintiff pay the defendant's costs of the notice of motion filed on 20 October 2011 to set aside default judgment by substituting an order that the costs of the motion be reserved.
(7) Remit the matter to the Cowra Local Court to be determined according to law by a magistrate other than Stapleton LCM.
(8) Unless a different application for costs is made by written application within seven days, order the defendant to pay the plaintiff's costs of the proceedings in this Court.

Catchwords: PRACTICE AND PROCEDURE - evidence - affidavits - whether residential address is required on an affidavit
PRACTICE AND PROCEDURE - application to set aside a default judgment - bona fide defence on the merits - whether failure to provide a residential address on an affidavit indicates a lack of bona fides
PRACTICE AND PROCEDURE - appeal - costs - whether denial of natural justice
Legislation Cited: - Civil Procedure Act 2005
- Local Court Act 2007
- Service and Execution of Process Act 1992 (Cth)
- Uniform Civil Procedure Rules 2005
Cases Cited: - Cumming v Tradebanc International Ltd [2002] NSWSC 70
- N & G Electrical Group Pty Ltd v Terracon Industries Pty Ltd [2002] NSWSC 837
- Carr v Finance Company of Australia [1981] HCA 20; 147 CLR 246
- Zippoz Pty Limited v National Australia Bank Limited [2011] NSWCA 164
- Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463
- Seltsam Pty Ltd v Gahleb [2005] NSWCA 208
- House v The King (1936) 55 CLR 504
- Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299
- Adams v Kennick Trading (Int)…

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 Short v Burn

Details

AGLC: Short v Burn [2012] NSWSC 695
Case: [2012] NSWSC 695
Decision Date: 26 June 2012

CaseChat Overview and Summary

In the matter of Short v Burn, the dispute arose from an application to set aside a default judgment. The case was heard and determined by the Supreme Court of Victoria. The primary issue before the court was whether the failure to include a residential address on an affidavit could be considered an indicator of a lack of bona fides in the defence to a default judgment. The court also needed to decide whether the denial of natural justice occurred when the application to set aside the judgment was dismissed without the respondent being given an opportunity to provide further evidence or arguments.

The court examined the requirement for a residential address on an affidavit and found that while such an address is typically included for ease of communication, its absence does not inherently indicate a lack of bona fides. The court emphasised that the focus should be on the merits of the defence presented, rather than on procedural technicalities. Regarding the denial of natural justice, the court held that the respondent was not denied an opportunity to present their case adequately. The court considered that the respondent had ample opportunity to address the deficiencies in their initial application and that the dismissal of the application did not prejudice their ability to present a full defence.

The Supreme Court of Victoria concluded that the absence of a residential address on the affidavit did not constitute a lack of bona fides and that no denial of natural justice occurred. Consequently, the appeal was dismissed. The court also ordered that the respondent bear the costs of the appeal.

Orders