Stankovic v Magee - [2014] NSWCA 439

Court of Appeal

New South Wales

Case Title: Stankovic v Magee

Medium Neutral Citation: [2014] NSWCA 439

Hearing Date(s): 2 December 2014

Decision Date: 18 December 2014

Before: Basten JA at [1];
Macfarlan JA at [10];
Gleeson JA at [28]

Decision:
(1) Set aside the default judgment granted in the District Court on 21 June 2013 against the appellant in favour of the respondent.

(2) Remit the matter to the District Court for further hearing.

(3) The respondent is to pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

[Note: 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: PRACTICE AND PROCEDURE - default judgment - respondent solicitor obtained default judgment against appellant for recovery of legal fees incurred by appellant - judicial registrar rejected appellant's application to set judgment aside because application out of time - time to apply to set aside default judgment not restricted by UCPR r 36.16 - delay in application relevant to exercise of discretion but not to power to set aside default judgment - whether appellant adduced sufficient evidence of arguable defence to respondent's claim - default judgment set aside

PRACTICE AND PROCEDURE - pleading - short form pleading - pleading of facts in short form in respect of certain money claims - requirement to give particulars - need for strict compliance with rules permitting short forms of pleading - what constitutes condition precedent to cause of action to recover legal costs - UCPR rr 14.11, 14.12

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58
Legal Profession Act 2004 (NSW), ss 319, 331, 332, 332A
Suitors' Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.3, 14.11, 14.12, 14.23, 14.28, 15.1, 16.2, 16.3, 16.6, 36.16

Cases Cited: Dai v Zhu [2013] NSWCA 412
Hart v Nominal Defendant [1971] 1 NSWLR 147

Texts Cited: Chitty on Pleading (6th ed, 1836)
E Bullen and S M Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (3rd ed 1868, Stevens & Sons, London)

Category: Principal judgment

Parties: Milovan Stankovic (Appellant)
Peter Michael Magee trading as Armstrong Legal (Respondent)

Representation

- Counsel: Counsel:
Appellant (self-represented)
S Clemmett (Respondent)

- Solicitors: Solicitors:
Appellant (self-represented)
Armstrong Legal (Respondent)

File Number(s): CA 2013/263313

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Judicial Registrar Howard

- Date of Decision: 26 July 2013

- Court File Number(s): DC 2013/134399

JUDGMENT

BASTEN JA: I gratefully adopt the reasons given below by Macfarlan JA for the orders made on 2 December 2014. I would…

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 Stankovic v Magee

Details

AGLC: Stankovic v Magee [2014] NSWCA 439
Case: [2014] NSWCA 439
Decision Date: 18 December 2014

CaseChat Overview and Summary

In *Stankovic v Magee*, the New South Wales Court of Appeal considered an appeal against a District Court decision that refused to set aside a default judgment. The default judgment had been entered against the appellant in favour of the respondent, a solicitor, for recovery of legal fees. The judicial registrar had rejected the appellant's application to set aside the default judgment on the basis that it was out of time.

The primary legal issues before the Court of Appeal were whether the time limit stipulated in Rule 36.16 of the Uniform Civil Procedure Rules 2005 (UCPR) restricted the court's power to set aside a default judgment, and if so, whether the appellant had adduced sufficient evidence to demonstrate an arguable defence to the respondent's claim for legal fees. The court also considered the requirements for short form pleading under Rules 14.11 and 14.12 of the UCPR, particularly in relation to the pleading of facts for money claims and the need for particulars.

The Court of Appeal held that the time limit in UCPR Rule 36.16 did not restrict the court's power to set aside a default judgment, but rather was relevant to the exercise of discretion. The court found that the appellant had provided sufficient evidence of an arguable defence. Consequently, the Court of Appeal ordered that the default judgment granted in the District Court be set aside and remitted the matter for further hearing. The respondent was ordered to pay the appellant's costs in the Court of Appeal and was granted a certificate under the Suitors' Fund Act 1951 (NSW) in respect of those costs.

Orders

Orders of the court

(1) Set aside the default judgment granted in the District Court on 21 June 2013 against the appellant in favour of the respondent.

(2) Remit the matter to the District Court for further hearing.

(3) The respondent is to pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

[Note: 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Case Title:	Stankovic v Magee
Medium Neutral Citation:	[2014] NSWCA 439
Hearing Date(s):	2 December 2014
Decision Date:	18 December 2014
Before:	Basten JA at [1]; Macfarlan JA at [10]; Gleeson JA at [28]
Decision:	(1) Set aside the default judgment granted in the District Court on 21 June 2013 against the appellant in favour of the respondent. (2) Remit the matter to the District Court for further hearing. (3) The respondent is to pay the appellant's costs in this Court. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. [Note: 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:	PRACTICE AND PROCEDURE - default judgment - respondent solicitor obtained default judgment against appellant for recovery of legal fees incurred by appellant - judicial registrar rejected appellant's application to set judgment aside because application out of time - time to apply to set aside default judgment not restricted by UCPR r 36.16 - delay in application relevant to exercise of discretion but not to power to set aside default judgment - whether appellant adduced sufficient evidence of arguable defence to respondent's claim - default judgment set aside PRACTICE AND PROCEDURE - pleading - short form pleading - pleading of facts in short form in respect of certain money claims - requirement to give particulars - need for strict compliance with rules permitting short forms of pleading - what constitutes condition precedent to cause of action to recover legal costs - UCPR rr 14.11, 14.12
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 58 Legal Profession Act 2004 (NSW), ss 319, 331, 332, 332A Suitors' Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 14.3, 14.11, 14.12, 14.23, 14.28, 15.1, 16.2, 16.3, 16.6, 36.16
Cases Cited:	Dai v Zhu [2013] NSWCA 412 Hart v Nominal Defendant [1971] 1 NSWLR 147
Texts Cited:	Chitty on Pleading (6th ed, 1836) E Bullen and S M Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (3rd ed 1868, Stevens & Sons, London)
Category:	Principal judgment
Parties:	Milovan Stankovic (Appellant) Peter Michael Magee trading as Armstrong Legal (Respondent)
Representation
- Counsel:	Counsel: Appellant (self-represented) S Clemmett (Respondent)
- Solicitors:	Solicitors: Appellant (self-represented) Armstrong Legal (Respondent)
File Number(s):	CA 2013/263313
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Judicial Registrar Howard
- Date of Decision:	26 July 2013
- Court File Number(s):	DC 2013/134399