New South Wales
Court of Appeal
CITATION: Singh v Ginelle Pty Ltd [2010] NSWCA 310 HEARING DATE(S): 26 October 2010
JUDGMENT DATE:
19 November 2010JUDGMENT OF: Beazley JA at 1; Campbell JA at 2; Handley AJA at 67 DECISION: (1) Grant leave to appeal from the decision of Latham J on 9 March 2010 in proceedings 292530 of 2009 in the Common Law Division of the Supreme Court of NSW but dismiss the appeal with costs.
(2) Application for leave to appeal from the decision of Palmer J given on 5 May 2010 in proceedings 113436 of 2010 in the Equity Division of the Supreme Court of NSW dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]CATCHWORDS: PROCEDURE – setting aside a judgment – powers of the court – application to set aside judgment entered by consent and obtained in absence of a party is to be decided in accordance with standards appropriate to setting aside of consent judgments – court does not have a free-ranging discretion to set aside judgment entered by consent – power exercisable only in accordance with a specific set of principles identified in Harvey v Phillips (1956) 95 CLR 235 – PROCEDURE – setting aside a judgment – a challenge to an agreement in relation to consent orders and an application to overturn the subsequent consent judgment ought to be brought as independent proceedings – waiver of objection to application to overturn consent judgment being brought by notice of motion – EVIDENCE – burden of proof – party who seeks to overturn a first instance judgment has an onus of establishing that there is sufficient reason for it to be overturned – ABUSE OF PROCESS – when an application for final relief has been heard and rejected, it is an abuse of process to approach the court at first instance again seeking the same relief LEGISLATION CITED: Consumer Credit (NSW) Act 1995
Credit (Commonwealth Powers) Act 2010
Uniform Civil Procedure Rule 2005CATEGORY: Principal judgment CASES CITED: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503
Balbir Singh v Ginelle Pty Ltd, NSWCA, 16 March 2010, unreported
Ginelle Pty Ltd v Singh [2010] NSWSC 579
Harvey v Phillips (1956) 95 CLR 235
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Re Jay-O-Bees Pty Ltd (in Liq); Rosseau Pty Ltd (in Liq) v Jay-O-Bees Pty Ltd (in Liq) [2004] NSWSC 818; (2004) 50 ACSR 565
Singh vGinelle Pty Ltd [2010] NSWSC 442
Singh v Secretary, Department of Family & Community Services [2001] FCA 1281 (Full Federal Court, 21 September 2001)
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Continue reading Singh v Ginelle Pty Ltd
Sign in free to access the full text
Details
- AGLC
- Singh v Ginelle Pty Ltd [2010] NSWCA 310
- Case
- [2010] NSWCA 310
- Decision Date
CaseChat Overview and Summary
The appeal concerned an application to set aside a consent judgment entered in the Supreme Court of New South Wales. The parties involved were Singh and Ginelle Pty Ltd. The dispute arose from a prior judgment that Mr Singh sought to have set aside.
The primary legal issue before the court was the appropriate standard to be applied when considering an application to set aside a judgment entered by consent, particularly when that judgment was obtained in the absence of a party. The court also considered whether an application to overturn a consent judgment should be brought as independent proceedings and the principles governing abuse of process in relation to repeated applications for relief.
The court held that a judgment entered by consent is not subject to a free-ranging discretion to be set aside. Instead, such applications must be decided in accordance with the specific principles identified in *Harvey v Phillips* (1956) 95 CLR 235. These principles require the party seeking to overturn the judgment to bear the onus of establishing sufficient reason for it to be set aside. Furthermore, the court noted that an application to challenge an agreement underlying consent orders and to overturn the subsequent judgment ought to be brought as independent proceedings, although objection to this procedural point could be waived. The court also found that seeking the same relief after a final application had been heard and rejected constituted an abuse of process.
Leave to appeal from the decision of Latham J was granted, but the appeal was dismissed with costs. The application for leave to appeal from the decision of Palmer J was also dismissed with costs.
The primary legal issue before the court was the appropriate standard to be applied when considering an application to set aside a judgment entered by consent, particularly when that judgment was obtained in the absence of a party. The court also considered whether an application to overturn a consent judgment should be brought as independent proceedings and the principles governing abuse of process in relation to repeated applications for relief.
The court held that a judgment entered by consent is not subject to a free-ranging discretion to be set aside. Instead, such applications must be decided in accordance with the specific principles identified in *Harvey v Phillips* (1956) 95 CLR 235. These principles require the party seeking to overturn the judgment to bear the onus of establishing sufficient reason for it to be set aside. Furthermore, the court noted that an application to challenge an agreement underlying consent orders and to overturn the subsequent judgment ought to be brought as independent proceedings, although objection to this procedural point could be waived. The court also found that seeking the same relief after a final application had been heard and rejected constituted an abuse of process.
Leave to appeal from the decision of Latham J was granted, but the appeal was dismissed with costs. The application for leave to appeal from the decision of Palmer J was also dismissed with costs.
Orders
Orders of the court
(1) Grant leave to appeal from the decision of Latham J on 9 March 2010 in proceedings 292530 of 2009 in the Common Law Division of the Supreme Court of NSW but dismiss the appeal with costs.
(2) Application for leave to appeal from the decision of Palmer J given on 5 May 2010 in proceedings 113436 of 2010 in the Equity Division of the Supreme Court of NSW dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.