KING-ORSBORN v ARTTWON DEVELOPMENT LTD [1995] NSWCA 242

KING-ORSBORN v ARTTWON DEVELOPMENT LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirpy P, HANDLEY and SHELLER JJA 17 May 1995

[1995] NSWCA 242

DISTRICT COURT — practice and procedure — serious and repeated default by defendants in modest debt recovery action — non-compliance with orders of judges — inadequate explanations — judge requires payment in large sum by afternoon of hearing — rejects future provision of mortgage as inadequate — whether discretion miscarried — held: In the circumstances, it did not.

PRACTICE & PROCEDURE — District Court — persistent defaults by defendants in observance of orders of District Court judges — request for merciful indulgence — judge offers indulgence on terms that security in cash be provided that day — whether discretion miscarried — held: It did not.

COURTS & JUDGES — jurisdiction District Court — whether jurisdiction to require security to be provided for past defaults — whether beyond power — held: It was not — although no express power to order security existed there was power to strike out defective defence upon terms.

Sheller JA. Ex tempore

On 30 September 1994, his Honour Judge Mahoney QC heard an application by way of notice of motion filed 11 August 1994 in which the respondent, Arttwon Development Ltd, applied to have the appellants, Mrs and Mr King-Orsborn's defences and cross-claims in proceedings commenced by the respondent on 5 August 1992 struck out. Those proceedings were commenced in the Local Court and transferred to the District Court. The appellants' defence and cross-claim were filed on 6 October 1992 and the respondent's defence to cross-claim on 30 October 1992.

The application before Mahoney DCJ was supported by two affidavits which were read without objection. The first in point of time was that of Mr Graham Smith of 17 May 1993. Mr Curtin, who appeared for the respondent before Mahoney DCJ and on this appeal, informed his Honour that the affidavit was