HASTIE v NIXON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 10 December 1990 [1990] NSWCA 89 Mahoney JA (MOTION) This is a matter which comes before the court arising out of proceedings in the District Court. It appears from the evidence before the court, or what has been put to the court without objection, that a proceeding was brought by Mr Nixon against two defendants, Gloria Constance Benecke and Raymond Michael Hastie, the claimant in the present case. On 8 June 1990 an application was made by Mr Nixon for summary judgment against Mr Hastie. His Honour Judge Downs on that date gave a judgment which was in the following terms: "So far as the notice of motion is concerned I order that the defences filed on behalf of the first and second defendants be struck out and I enter judgment for the plaintiff in the sum of $48,118.03 together with interest thereon against the second defendant only. As to interest, I will give the plaintiff liberty to apply. I have not hesitated to make the orders I have just made because it was 15 months ago when the second defendant admitted not only his liability but clearly, inferentially admitted his liability in the amount claimed and nothing has been done since then by the first or the second defendants except that Mr Hickey said they were in a position to file fresh defence in the very near future." An application was apparently made to Downs J for a stay of that order and that application was refused. I am informed that in August 1990 an application was made to the District Court to set aside the order that his Honour Judge Downs had made and that on 2 November 1990 the matter came before his Honour Judge Shillington. His Honour refused to set aside the order and, as I understand, dismissed the application. There is not before me any detail of his Honour's judgment in relation to the matter. There has been placed before me in the affidavit of Mr Raymond Michael Hastie of 7 December 1990 and as annexure B to that affidavit a copy of the affidavit which appears to have been filed in the District Court in the proceedings which came before his Honour Judge Shillington on 2 November 1990. That affidavit appears to be the affidavit relied upon by Mr Hastie in those proceedings. The affidavit does not, I think, make very clear why the order that his Honour Judge Downs made on 8 June 1990 should be set aside. There is not before me evidence of the defence which was filed by Mr Hastie in those proceedings and although the affidavit goes - I put the matter generally - to matters of merit, it does not provide detailed assistance to indicate why his Honour struck out the defence. The affidavit indicates, I think, essentially the grounds upon which Mr Hastie would desire to defend the proceedings. The first ground referred to is: "I have never been personally liable to the plaintiff', for the reasons that are there set out in particular in par 7. The second ground referred to is: "I intend to defend the action as that money is owed to the plaintiff for various transactions which the business entered into with him." It is not clear what that particular paragraph of the affidavit means. 2 UNREPORTED JUDGMENTS There has now been made to this Court an application on summons to set aside the judgment which his Honour Judge Shillington gave on 2 November 1990. That is the judgment refusing to set aside the judgment of his Honour Judge Downs given on 8 June 1990. That application is made under, as I shall describe it, the prerogative jurisdiction of this Court, consequent upon the law as it was established in Clutha Developments v Barry (1989) 18 NSWLR 86. The matter has proceeded upon the basis that that decision governs the present matter. The summons having been filed in court on 4 December 1990, a notice of motion is now before this Court seeking in effect a stay in some way of the proceedings in the District Court pending the determination of the substantial claim in the summons. Ordinarily I would not think 'chat the evidence which is presently before the court would warrant the granting of the kinds of orders set forth in the notice of motion if otherwise the orders were available to be made. The evidence before me does not indicate anything to suggest that the order made by his Honour Judge Downs was wrong or that the reconsideration of it on the application to his Honour Judge Shillington in any way miscarried so as to allow the kind of relief which the summons seeks. The matter which gives me pause is this: that I am informed from the bar table that an application has been made for a copy of the judgment of his Honour Judge Shillington but no copy of the judgment has yet been obtained. It does not appear in terms when the application was made but I shall assume it was made contemporaneously with the giving of the judgment. It may be that there will be something in the judgment of his Honour Judge Shillington which would base the kind of relief which is sought in the summons filed in this Court and upon the basis of which the present notice of motion is filed. But that does not appear. It seems to me to be clear that evidence in relation to this kind of matter was necessary. In the absence of evidence giving some indication why the court should grant relief upon the present summons, the present application would fail. However, an application was then made for an adjournment in order to see whether some evidence of what his Honour Judge Shillington did can be otherwise provided to this Court. The evidence would presumably be directed to suggesting some error in what his Honour did. That would not necessarily lead to the relief that the present applicant seeks because in fact the judgment which was entered by Downs J would still remain. However, I put aside that consideration for the moment. $P The complication that arises in this regard is that a notice under the bankruptcy legislation has been served requiring payment of the amount of the judgment and, no doubt, associated interest and the time for compliance with that notice has now passed. I am informed that it is proposed to issue a petition based upon non-compliance with that notice. His Honour Clarke JA, upon an ex parte application, stayed the effect of the District Court judgment - I put the matter generally - until and including today so that the matter could be considered and so that the applicant Mr Hastie could have an opportunity to put before the court appropriate evidence to warrant the orders that he now seeks. As I have said, the evidence which is presently before the court is in my opinion not appropriate to base any such order. Application has then been made by Mr Blackburn on behalf of Mr Hastie for an adjournment of the proceedings so that he may endeavour to put further evidence before the court. I am prepared to grant an adjournment for that purpose. However, I am not, on the evidence which is before the court, prepared URJ HASTIE v NIXON (Mahoney JA) 3 to order any formal stay of the judgment which has been entered against Mr Hastie in the District Court. I do not think that the evidence which is before me, having regard to the fact that the matter has been before judges of this Court now on two occasions, would warrant the making of any such order. I would therefore be prepared to grant an appropriate adjournment but, as I have said, not to stay the effect of the judgment. That, prima facie, would appear to allow the filing of a petition in the bankruptcy jurisdiction based upon the judgment. Whether, on an application in the bankruptcy jurisdiction, any order would be made by way of stay or otherwise by a judge in that jurisdiction is not a matter upon which, of course, I would seek to express an opinion. However, I have detailed the considerations which have moved me in this matter so that they will be available to any judge to whom an application of that kind may be made. I do not, by what I have done, exclude the possibility that, if appropriate evidence can be obtained and can be brought before the court, an order may be made staying the effect of the execution of the judgment entered by his Honour Judge Downs in due course. Whether the evidence can be produced for that purpose and whether any such order would be made is a matter on which I express no opinion but that possibility remains open. I have refused to make any such order for the reasons which I have outlined. I am prepared therefore to consider determining the date to which the present proceeding should be adjourned so that the parties may either bring further evidence in due course in the present application or they may make such application as they may see fit in the bankruptcy court in relation to the matter. The order I make is that I stand over the notice of motion to the first motion day of 1991. I reserve liberty to either party to apply to restore the application to the list on one day's notice. The costs of today will be the costs of the applicant, Mr Hastie, in the application.