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. The Bank has acknowledged that the proceedings on the motion were started in the District Court within a very short time of the judgment of Acting Judge Kennedy-Smith. That appears to be the case. The claimants applied on motion to the District Court to set aside the judgment on the basis of an explanation of the delay and the demonstration of a defence on the merits. This Court is of the view that such is the proper course that should now be followed. The motion should be heard in the District Court without this Court's troubling to resolve the technical point on the District Court Rules Pt 8 r 13 that has been raised on the summons. That point can be reserved for another day, when it is necessary to be determined. It is not necessary here because the claimants have initiated proceedings in the District Court which will allow a reconsideration of the matter by that Court on any merits of the defences raised. The proposal I would make, on that basis, is that the summons be dismissed. The claimants must pay the opponent's costs. JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:12:37 2008 /reports/caseml]/case/urj/9508070 UNREPORTED JUDGMENTS Clarke JA. I agree. Sheller JA. I also agree. (Counsel made submissions re costs.) 5 _ Kirby P. The Court is aware of the difficulties relevant to the costs. However the facts are: 1. In order to be determine the contested point of costs the Court would have to resolve the very issue raised by the summons. Having regard tothe hour and the proceedings which the claimants have taken in the District Court, the Court has decided not to determine the technical point in this case. That point can remain for another day when the Court is obliged to deal with it; . The claimants brought the proceedings in the District Court first. Those proceedings are proceedings for the resolution of the matter on the merits. They were suggested by the primary judge. They are, and were, the correct step to take; and . The claimants have now come to this Court. Had the proceedings in the District Court been heard early, pressed, resolved, and determined in the claimants" favour, they would not have had to trouble this Court. If the claimants have a defence on the merits it will be so held in the District Court. The motion in that Court was the correct procedure for the claimants to have taken. The judge suggested it. They took it. They should now return to it for it provides the means of a just resolution of the dispute. For those three reasons the Court will confirm the order which it made as to costs. As to the costs of the earlier date upon which the summons was before this Court, it would seem that the costs of that day are to be viewed as part of the costs of the summons in this Court. They will therefore have to be paid by the claimants. The orders of the Court are: leave is refused. The summons is dismissed. The claimants must pay the costs in this Court. Summons dismissed with costs. 35 Counsel for the claimants: P N D Jenkyn Solicitors for the claimants: Graham Limburg and Co Counsel for the opponent: A K Ottensen 40 _ Solicitors for the opponent: Norton Smith and Co