COHEN v BELGRAVE INDUSTRIES PTY LTD [1993] NSWCA 65

COHEN v BELGRAVE INDUSTRIES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and Cripps JJA 24 May 1993, 2 July 1993

[1993] NSWCA 65

The applicant sought to have a judgment made against him set aside claiming that his defence has never been adjudicated upon its merits. The applicant was restrained from taking this action by Finlay J. The applicant here sought to have Finlay J's orders set aside.

Priestley JA In September 1988 a judgment was entered against Mr Cohen, the claimant in these proceedings, in favour of Belgrave Industries Pty Ltd ("Belgrave"), the principal opponent in these proceedings. The amount of the judgment was in the order of $10,000. The judgment has not been satisfied.

Leaving aside the form in which available procedures have caused Mr Cohen to present his application to this court, what he tells the court is that he does not owe anything to Belgrave, his defence to Belgrave's claim has never been heard on the merits, and the court should do what is necessary to set aside the judgment against him so that he can have his defence adjudicated upon its merits.

Again leaving aside the forms in which the effect of this court's decision on Mr Cohen's application should be framed, the answer to his application is that he has had a number of opportunities of having his defence adjudicated on by a competent tribunal, he did not use those opportunities, except on one occasion, when in May 1990 the merits of his case were examined, he gave evidence and was not believed, and, in a real way, lost on the merits.

That loss was the subject of an appeal by way of stated case heard by Allen J in 1991. Allen J gave careful consideration to Mr Cohen's submissions, which were presented by counsel, and on 25 November 1991 published reasons for dismissing the appeal. Those reasons are quite lengthy and set out the technical and substantial history to the date of that judgment. Mr Cohen sought leave to appeal from Allen J's decision to this court. This application was presented by counsel. It was dismissed on | June 1992.