Symonds v Vass - [2003] NSWSC 170

CITATION: Symonds v Vass & Ors [2003] NSWSC 170

HEARING DATE(S): 6/3/03
7/3/03

JUDGMENT DATE:
1 April 2003

JURISDICTION:
Common Law Division
Professional Negligence List

JUDGMENT OF: Kirby J

DECISION: Ref para 94

CATCHWORDS: Professional Negligence - application to set aside Judgment - consent order - self executing order - whether a contract - default judgment - whether final or interlocutory where damages to be assessed - warning when default judgment

LEGISLATION CITED: Supreme Court Act 1970
Partnership Act 1982

CASES CITED: O'Donnell v S Abbott [2001] NSWCA 184
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 7 NSWLR 319
Bailey v Marinoff (1971) 125 CLR 529
Mullins v Howell (1879) 11 Ch D 763
Laurena Pty Ltd v Vilanti Pty Ltd [1999] NSWSC 37
Purcell v F C Trigell Ltd [1971] 1 QB 358
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
Computer Edge Pty Ltd & Anor v Apple Computer Inc & Anor (1984) 54 ALR 767
Triden Properties Ltd v Capita Financial Group Ltd (unreported, NSWCA, 26.11.93)
Cox Bros (Aust) Ltd v Cox (1934) 50 CLR 314
Thomas v Bunn [1991] 1 AC 362
Siebe Gorman Ltd v Pneupac Ltd [1982] 1 WLR 185
R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 80 ALR 134
Paino v Hofbauer (1988) 13 NSWLR 193
National Benzole Co Ltd v Gooch [1961] 3 All ER 1097
Mackay v Dick (1881) 6 AC 251
Secured Income Real Estate v St Martin's Investments (1979) 144 CLR 596
BP Refinery (Westernport) Pty Ltd v The Shire of Hastings (1977) 180 CLR 266
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239
Reinehr Industrial Lease & Finance Pty Ltd v Jordan (unreported, NSWCA, 04.06.74)
Legione v Hately (1982-83) 152 CLR 406
Emmett v Hornsby Shire Council & Anor [2002] NSWCA 75

PARTIES :
Monica Frances SYMONDS (1 Pl/Resp)
Gerald Henry SYMONDS (2 Pl/Resp)
Cedric Bohrsmann VASS (1 Def)
Douglas James HAMILTON (3 Def)
John Michael CHURCHILL (4 Def)
John David Latimer FABIAN (5 Def)
Robert Carlyle JORDAN (6 Def)
Michael Thomas Robert BINNETTER (7 Def)
Harold WERKSMAN (8 Def/Appl)
Phillip S D Purcell (9 Def)
Graham Arundel FRANCIS (10 Def)
John Nelson MILLER (11 Def)
Edward Malcolm DAVIES (12 Def)
Ian George JOHNSTON (13 Def)
David Paul SELIG (14 Def)
Bruce Neil McLEAN (15 Def)
Christopher Bruce BRIERLEY (16 Def)
John Frederick WHITEHOUSE (17 Def)
Andrew SPEARRITT (18 Def)
Luciano Luigi DEBIASI (19 Def)
Anastasia TSEKOURAS (20 Def)
Michael F P DANIEL (21 Def)
Stephen Howard KLOTZ (22 Def)
Michael Bruce YATES (23 Def/Appl)
Michael Anthony BOWER (24 Def)
Julian Patrick McGRATH (25 Def)
Margaret Therese RODGERS (26 Def)

FILE NUMBER(S): SC 20994/01

COUNSEL: T E F Hughes QC/V R W Gray (Pls/Resps)
D Robinson (8 & 23 Defs/Appls)

SOLICITORS: Malcolm Johns & Co (Pls/Resps)
Holding Redlich (8 & 23 Defs/Appls)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

DAVID KIRBY J

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.

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Details

Case: [2003] NSWSC 170
Decision Date: 1 April 2003

CaseChat Overview and Summary

The case of Symonds v Vass involved a claim for professional negligence against the defendant, Vass. The plaintiff sought to set aside a default judgment previously entered against them. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that the default judgment was self-executing and did not require further court intervention to be enforced, and that it constituted a binding contract. The court was required to determine whether the default judgment was indeed self-executing and contractual in nature, and whether it was a final judgment that could be enforced as such.

The court examined the nature of the default judgment and its enforceability. It found that the default judgment was indeed self-executing, as it contained an order for the defendant to pay damages to the plaintiff. However, the court also noted that the judgment was not a final order, as it did not specify the amount of damages to be paid. The court held that until the damages were assessed, the judgment could not be enforced as a final order. The court further found that the default judgment did not constitute a binding contract between the parties, as it did not contain all the essential elements of a contract, such as consideration and intention to create legal relations.

The court granted the plaintiff's application to set aside the default judgment, on the condition that the plaintiff pay the defendant's costs of the application. The court held that the default judgment was not a final order and could not be enforced until the damages were assessed. The court also found that the default judgment did not constitute a binding contract, as it lacked essential elements such as consideration and intention to create legal relations. The court warned that parties should be cautious when entering into default judgments, as they may not always be self-executing or final orders.

The court ordered that the default judgment be set aside, and that the matter be listed for further directions to assess the damages to be paid by the defendant to the plaintiff. The court further ordered that the plaintiff pay the defendant's costs of the application, on an indemnity basis.

Orders