FAOUR v NEC HOME ELECTRONICS AUSTRALIA PTY LIMITED [1996] NSWCA 181

FAOUR v NEC HOME ELECTRONICS AUSTRALIA PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA, PRIESTLEY JA and CLARKE JA 5 February 1996

[1996] NSWCA 181

Mahoney JA. This is a matter which comes before the Court on an application for leave to appeal. There was a judgment by default in the District Court. The motion came before his Honour Judge Garling, who set aside the judgment by default.

His Honour, on 12 December 1995, made an order dismissing that application. Application has been made to this Court for leave to appeal against his Honour's dismissal. It is accepted by the parties, and in my opinion they have acted very sensibly in the matter, that unfortunately an error was made by the District Court in dealing with the matter as it did. The result of that is that leave to appeal against the judge's order should be given. The order that the judge made on the motion should be set aside and the proceeding should be returned to the District Court, that is the motion, to allow it to determine what should be done in relation to it in accordance with law. What will happen following that, in relation to the trial of the matter will, of course, depend upon the order that is then made.

The only matter which is outstanding is the matter of costs. The Court has heard the submissions of both parties, and it has come to a conclusion which, no doubt, is not satisfactory to either side, but which seems to be the appropriate conclusion. In the circumstances, it will direct that the costs of the proceedings on the motion before the judge below, as in November/December 1995, be reserved to the discretion of the judge who ultimately hears and disposes of the motion; it will be for him, having heard all of the facts of the matter, to determine who should pay the costs of that original motion.