HASTIE v NIXON [1990] NSWCA 90

HASTIE v NIXON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 10 December 1990

[1990] NSWCA 90

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.