HARDIVAN HOLDINGS PTY LIMITED v AUSTRALIAN AND NEW ZEALAND BANKING GROUP [1995] NSWCA 191

HARDIVAN HOLDINGS PTY LIMITED v AUSTRALIAN AND NEW ZEALAND BANKING GROUP

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirsy P, CLARKE JA and SHELLER JA 22 May 1995 [1995] NSWCA 191

PRACTICE & PROCEDURE — Court of Appeal — summons for leave to appeal from the District Court — challenge to validity of default judgment — whether process properly served on judgment debtor — judgment debtor files motion in District Court seeking to have judgment set aside on the basis of an excuse for the delay and demonstration of a defence on the merits — held: Although an irregularity in the entry of the default judgment may have been shown, the proper course, the motion having been filed in the District Court, was for the motion to be heard on its merits by the District Court. Determination on the technical point as to proper service of the summons could be postponed to a case where it was required. Summons dismissed with costs.

District Court Act, 1973, s 44(3). District Court Rules Part 8 rule 13.

Kirby P. The Court is of the opinion that there may have been an irregularity in the default judgment which has been entered in this case. However, it being 4.30 p.m. on a heavy summons day, the Court will not delay to resolve that point finally. It is not necessary for the course which the Court proposes to take.

Judgment has been entered in the District Court. No defence on the merits has been shown to that Court or to this Court. It has not been shown in the Court of Appeal because of the nature of the summons before us. The Court has been told that there is no impediment by way of any provision in a statute of limitations which will prevent the matter still being dealt with on its merits in the District Court. That is what should occur.

This Court has made it clear that, withholding its own relief, it would expect that the matter will proceed as Acting Judge Kennedy-Smith proposed in the District Court, viz to a consideration of the claimant's motion based upon showing a suggested defence on the merits.