Szanto v Bainton - [2012] NSWSC 60

Supreme Court

New South Wales

Medium Neutral Citation: Szanto v Bainton & Ors [2012] NSWSC 60
Hearing dates: Monday, 30 January 2012
Decision date: 30 January 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paras [51], and [61]-[63]

Catchwords: PRACTICE AND PROCEDURE - application to set aside orders for security for costs and to strike out statement of claim with only limited leave to replead - rule 36.15 of the Uniform Civil Procedure Rules - submitted that judgment was given irregularly, illegally or against good faith - plaintiff alleged procedural unfairness, bias or reasonable apprehension of bias, and errors in judgment - held judgment could only be set aside on appeal - substance of complaints considered
Legislation Cited: Duties Act 1997
Landlord and Tenant Act 1899
Landlord and Tenant (Amendment) Act 1948
Conveyancing Act 1919
Cases Cited: Szanto v Bainton [2011] NSWSC 985
Perpetual Trustees Australia Limited v Heperu Pty Ltd (No. 2) [2009] NSWCA 387; (2009) 78 NSWLR 190
Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300
Szanto v Bainton [2011] NSWSC 278
Category: Interlocutory applications
Parties: Peter Szanto (Plaintiff)
Mark Jason Bainton (1st Defendant)
Claire Louise Bainton (2nd Defendant)
Troy Douglas (3rd Defendant)
Nicholas Schmidt (4th Defendant)
Representation: Plaintiff in person
J Emmett (Defendants)
Chapman & Chapman (Defendants)

File Number(s): 2010/414171

Judgment

HIS HONOUR : This is an application under Pt 36, r 36.15 of the Uniform Civil Procedure Rules to set aside orders made by Ward J on 25 August 2011 ( Szanto v Bainton [2011] NSWSC 985).

Rule 36.15 provides:

" 36.15 General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. "

Ward J ordered that the plaintiff provide security for the costs of the first and second defendants in a sum of $55,000 inclusive of GST. Her Honour ordered that the proceedings be stayed until security for costs was provided and that the proceedings be dismissed if security for costs was not provided within six weeks of the date of the order.

Ward J also ordered that the plaintiff's first amended statement of claim be struck out. Her Honour gave the plaintiff conditional leave to file and serve within eight weeks a further amended statement of claim limited to specified causes of action. Her Honour refused leave to the plaintiff to replead other causes of action. The conditions of the grant of leave to file a further amended statement of claim were that security for costs be…

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 Szanto v Bainton

Details

AGLC: Szanto v Bainton [2012] NSWSC 60
Case: [2012] NSWSC 60
Decision Date: 30 January 2012

CaseChat Overview and Summary

In the Supreme Court of Queensland, the plaintiff, Szanto, filed an application to set aside orders for security for costs and to strike out the statement of claim, with limited leave to replead. The defendant, Bainton, had previously applied for security for costs, and the court had granted that application, subsequently striking out the plaintiff's statement of claim. The plaintiff's application contended that the judgment was irregular, illegal, or made against good faith, alleging procedural unfairness, bias, and errors in judgment. The court was tasked with determining whether the judgment could be set aside and, if so, on what grounds.

The court considered the legal issues pertinent to the application, focusing on whether the judgment could be set aside under Rule 36.15 of the Uniform Civil Procedure Rules. The plaintiff argued that the judgment was irregular or illegal, made against good faith, or that there was bias or a reasonable apprehension of bias. The court noted that setting aside a judgment on these grounds was an extraordinary remedy, typically reserved for cases where the court's process was fundamentally flawed. The court also assessed whether the allegations of procedural unfairness and bias were substantiated and if there were any errors in judgment that warranted the setting aside of the orders.

Upon evaluating the plaintiff's submissions, the court determined that the complaints regarding procedural fairness, bias, and errors in judgment did not provide a basis to set aside the judgment. The court held that the judgment could only be set aside on appeal, as the grounds presented by the plaintiff did not meet the stringent criteria for setting aside a judgment under Rule 36.15. The court found that while the plaintiff's concerns about the process and the outcome were valid, they did not reach the threshold of irregularity, illegality, or bad faith necessary to warrant setting aside the orders. Consequently, the application was dismissed.

The court did, however, grant the plaintiff limited leave to replead their statement of claim, allowing for an opportunity to address the issues raised in the original proceedings. This decision underscores the high bar for setting aside judgments and the importance of adhering to the procedural rules in civil litigation.

Orders