MAGLARAS and ANOR v WESTAWAY PTY LTD [1991] NSWCA 179

MAGLARAS and ANOR v WESTAWAY PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 2 September 1991, 24 December 1991 [1991] NSWCA 179

PRACTICE AND PROCEDURE — Judgment entered by District Court Judge (Gallen DCJ) in absence of defendants — plaintiff later applies to another Judge (Patten ADCJ) to set aside such Judgment — application refused for want of acceptable explanation of the defendants' absence at the trial subsequent further application to third Judge (Garling ADCJ) to set aside Judgment — evidence tendered which shows arguable triable issue on the merits concerning allegedly defective building works and abandonment by builder of the works — Garling ADCJ declined, in reliance upon second Judge's reasons, to set aside Judgment — on appeal, by leave — held: (1) The test to be applied in an application to set aside Judgment entered in the absence of a party requires consideration of all the circumstances. Absence of an adequate explanation for the failure of the party to attend court is relevant but not determinative of the issue. Adams v Kennick trading (International) Limited (1986) 4 NSWLR 503 (CA); Hastie v Nixon, Court of Appeal, unreported, 9 October 1991; (1991) NSWJB 107 Evans v Bartlam [1937] AC 473 (HL);applied; (2) The third judge, by accepting the reasoning of the second judge had applied the incorrect test; (3) upon terms requiring the payment of costs thrown away by the inept conduct of the defendants' case, the judgment should be set aside and the defendants allowed in to defend.

WORDS AND PHRASES — "sufficient cause". District Court Rules, Pt2A, R2(3); Pt13, R1(2); Pt26, R5A(1) and (2).

Kirby P I agree with Priestley JA.

Priestley JA This litigation started in 1986. The defendants got off to a bad start, and their litigious performance has at all times been pretty dismal. As owners of a house they were being sued by a builder for payment for work done on the house. The way they have responded to the litigation has sometimes given the appearance that they were doing all they could to delay the proper hearing of the claim against them. In this appeal they are seeking to have reversed the decision of Garling ADCJ not to set aside a judgment given against them in their absence by Gallen DCJ on 5 November 1990.