HASTIE v NIXON [1991] NSWCA 297

HASTIE v NIXON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 23 and 24 September 1991, 9 October 1991

[1991] NSWCA 297

SUMMARY JUDGMENT IN DISTRICT COURT — summary judgment under ptl1A r2 District Court rules — entered after application upon notice to defendants who appeared by counsel — defendants not present — no evidence from defendants — subsequent application to set aside judgment under Pt11A r2(3), which permits that to be done "on sufficient cause being shown" — application to set aside dealt with on basis that matters which could and should have been dealt with at application for summary judgment should not be considered on application to set aside — considerable evidence from defendants before judge hearing application to set aside — argued for defendants that judge erred in law in not taking into account all matters before him — procedure under Ptl11A r2(3) discussed — discussion of applicability of Adams v Kennick Trading (1986) 4 NSWLR 503 (a decision on Pt13 r1(2) of District Court Rules) — held there had been an error of law order refusing to set aside judgment quashed.

Mahoney JA I agree with the judgment of Priestley JA and the orders he proposes.

Priestley JA In these proceedings Mr RM Hastie asks the court to exercise its powers under s69 of the Supreme Court Act 1970 to quash an order made by Shillington DCJ refusing to set aside a summary judgment entered by Downs DCJ on 8 June 1990 against him in the sum of $48,118.03 together with interest.

The proceedings in which Downs DCJ ordered summary judgment against Mr Hastie were begun by Mr W Nixon by a District Court statement of liquidated claim, filed on 3 May 1989, which named two defendants, the first Miss G Benecke, the second Mr Hastie.

Mr Nixon pleaded his cause of action in the statement of liquidated claim as follows: