Supreme Court New South Wales Medium Neutral Citation: Di Gregorio v Lumi Finance Pty Ltd [2022] NSWSC 1666 Hearing dates: 12 October 2022 Date of orders: 08 December 2022 Decision date: 08 December 2022 Jurisdiction: Common Law Before: Harrison J Decision: Dismiss the second plaintiff's summons filed on 4 February 2022 with costs. Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – application to set aside orders – application for a declaration that the defendant's statement of claim was incompetent – where plaintiff has previously applied unsuccessfully to have default judgment set aside – no basis established – application dismissed Cases Cited: Kuksal v Lumi Finance Pty Ltd [2021] NSWSC 1430 Category: Principal judgment Parties: Maria Di Gregorio (First Plaintiff) Shivesh Kuksal (Second Plaintiff) Lumi Finance Pty Ltd (First Defendant) Representation: Counsel: P Afshar (First Defendant) Solicitors: Legal Vision (First Defendant) File Number(s): 2022/32884 Publication restriction: Nil Judgment 1. HIS HONOUR: On 5 November 2021, on the application of Lumi Finance Pty Ltd by notice of motion filed on 26 May 2021 in proceedings commenced by Shivesh Kuksal by summons filed on 9 April 2021, her Honour Harrison AsJ dismissed the proceedings commenced by Mr Kuksal as incompetent: Kuksal v Lumi Finance Pty Ltd [2021] NSWSC 1430. Familiarity with her Honour's decision is assumed for the purposes of these reasons. 2. By that summons, Mr Kuksal had sought to appeal from the decision of a Magistrate dismissing his motion in the Local Court to set aside a default judgment obtained against him by Lumi Finance entered on 13 March 2020 and an order that he be let in to defend. Mr Kuksal's summons did not include any application for leave, nor any statement of the reasons why leave should be granted. Part of her Honour's detailed, thorough and comprehensive reasons included her analysis that Mr Kuksal had no entitlement to leave to appeal. It was as follows: "Is leave to appeal required? [32] The question of whether leave is required turns on whether the judgment is interlocutory as set out in s 40(2) of the Local Court Act. [33] Both parties referred to Carr & Anor v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 ("Carr"). Carr relevantly reads at 248: 'The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney (1976) 50 ALJR 439 at 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423 at 440. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. … In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain that it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of proceedings already taken – an inquiry quite inappropriate when the only issue is whether a right of appeal exists.' The plaintiff's submissions [34] Mr Kuksal provided only one paragraph of written submissions on the issue of whether the Local Court decision was interlocutory, however he did make further oral submissions on that topic. [35] The relevant paragraph in his submissions states: '[7] Despite it not being relevant, for what it's worth, with respect to your submission that orders dismissing applications to set aside default judgments are inherently interlocutory, we wish to advise that a perusal of Hall v Nominal Defendant [1996] HCA 36 and Carr v Finance Corporation of Australia Ltd (No 1) [1980], HCA together with Re Golding [2020] HCA 38 should leave no ambiguity that in circumstances where the application has been dismissed for non-compliance with overarching obligations under the Civil Procedure Act, on account of the adjudicator's assessment of the plaintiff's credit with respect to the explanation for his inability to comply with the a requirement to attend a hearing, a reapplication to the Court would not only be resisted on grounds of issue estoppel, but also the Court is likely to find that it is an abuse of process.' [36] In oral submissions Mr Kuksal submitted that the defendant's submission that Carr decisively stands for the principle that a decision to set aside a notice of motion to set aside a default judgment is an interlocutory order is erroneous." 1. After having dealt with the competing arguments, her Honour expressed her conclusion on this issue as follows: "[61] Mr Kuksal's summons requires leave in accordance with s 40(2)(a) of the Local Court Act, and having not complied with the requirements of UCPR 50.12(4), Mr Kuksal's appeal is incompetent: Carr at 248 and 258." 1. Now by summons filed on 4 February 2022, Maria Di Gregorio and Mr Kuksal seek the following orders: (1) The orders of Magistrate McIntyre made on 22 November 2021 and 16 December 2021 be set aside. (2) The orders of Associate Justice Harrison made on 5 November 2021 be set aside. (3) Declaration that the orders of Registrar Grace Romeo made on 13 March 2020 were a nullity. (4) Declaration that the orders of Registrar A Giles made on 5 February 2021 were a nullity. (5) Declaration that the statement of claim lodged by [Lumi Finance Pty Ltd] on 14 November 2019 was incompetent. (6) The defendants bear the plaintiffs' costs in the Local Court and the Supreme Court proceedings on an indemnity basis. 1. Ms Di Gregorio was not an active party before me and sought no orders or relief. 2. There is no basis upon which Mr Kuksal is entitled to have the orders of her Honour set aside. Despite his extensive and regrettably discursive submissions to the contrary, Mr Kuksal has not established any. Mr Kuksal did not appeal from her Honour's decision, and certainly did not do so within time. These proceedings do not in any event amount to an appeal from her Honour's judgment properly understood. 3. Moreover, notwithstanding the fact that the default judgment against Mr Kuksal remains on foot, the basis for a declaration that Lumi Finance's statement of claim in the Local Court "was incompetent" has not been adequately identified before me in the first place and is in any event a matter that Mr Kuksal presumably remains entitled to agitate in that Court in the second place. 4. In my opinion, Mr Kuksal's summons filed on 4 February 2022 should be dismissed with costs. ********** Amendments 09 December 2022 - [2] amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022