Nasser v Smith [2008] NSWLC 7

Local Court of New South Wales

CITATION: Nasser v Smith [2008] NSWLC 7

JURISDICTION: Civil

PARTIES: Henri Ron Nasser (Plaintiff and Respondent to Motion) Guy Earl Smith (Defendant and Applicant for Motion)

FILE NUMBER: 3880/07

PLACE OF HEARING: Downing Centre

DATE OF DECISION: 05/08/2008

MAGISTRATE: Magistrate D Heilpern

CATCHWORDS: Set Aside Judgment - Estoppel

LEGISLATION CITED: Rule 36.16 Uniform Civil Procedure Rules 2005

Akari v Sole [2008] NSWSC 5 Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 Carr v Finance Corporation of Australia Limited (1980-81) 147 CLR 247 CASES CITED: Cohen v McWilliam (1995) 38 NSWLR Eddaglide Pty Ltd v Anor v Taubert and Ors [2000] NSWSC 1226 Hall v Nominal Defendant (1966) 117 CLR 423 Szczygiel v Peeku Holdings [2006] NSWSC 73

TEXTS CITED:

REPRESENTATION: Mr Rosenblatt (Pl/Res) Mr Refenes (Df/App)

ORDERS:

Reasons for Decision

1 By Notice of Motion dated 19 March 2008, the defendant seeks orders that the court sets aside default judgment entered on 4 July 2007. These orders are opposed by the plaintiff who initially proceeded by way of a "Notice of Motion to dismiss Notice of Motion" a process I was not previously aware of. The plaintiff agreed that the matter ought proceed on the basis that the plaintiff opposed the motion of the defendant to set aside judgment.

2 The basis for the application for setting aside the default judgment is Rule 36.16 of the Uniform Civil Procedure Rules 2005.

36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. 3 The key issue in this case is that there was a previous application to set aside judgment determined by the Registrar on 21 February 2008. This was dismissed although there is no written or sound recording of the matter at that level. Thus this is a second application to set aside judgment, and accordingly there are additional matters to consider.