EDDAGLIDE PTY. LTD. & ANOR. V. TAUBERT & ORS [2000] NSWSC 1226

New South Wales Supreme Court

CITATION : EDDAGLIDE PTY. LTD. & ANOR. V. TAUBERT & ORS [2000] NSWSC 1226 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2989/96 HEARING DATE(S) : 15th December 2000 JUDGMENT DATE : 15 December 2000

Eddaglide Pty. Limited - 1st plaintiff Gundagai Gold Pty. Ltd. - 2nd plaintiff PARTIES : Sigmund Taubert - 1st defendant Taubert Technologies Pty. Ltd. - 2nd defendant Pamela Ann Taubert - 3rd defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : R. Harper for plaintiffs Mr. Colyer for defendant SOLICITORS : John Carmody & Co., Burwood for plaintiffs Jones King, Sydney for defendants CATCHWORDS : PRACTICE - Interlocutory applications - Rule of practice as to repeated applications - Whether applies to applications to set aside default judgments. CASES CITED : Brimaud v. Honeysett Instant Print Pty. Ltd., McLelland J, 19/9/98 DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Friday 15th December 2000

NO. 2989 OF 1996 EDDAGLIDE PTY. LIMITED & ANOR. V. TAUBERT

JUDGMENT

1 I am dealing with a notice of motion filed 27 November 2000 seeking, primarily, orders that judgments obtained against the first and second defendants on 1 June 2000 be set aside. 2 The application faced an initial hurdle, in that a similar application was dealt with by Hamilton, J., and after a contested hearing, Hamilton, J. dismissed such an application on 22 November 2000. In those circumstances it seemed to me, prima facie, that the approach to interlocutory decisions set out in Brimaud v Honeysett Instant Print Pty Ltd, McLelland J, 19 September 1988, applied; so that the application before me today could, in the ordinary course, succeed only if a material change of circumstance was shown, or if there had been discovery of new material which couldn't reasonably have been put before Hamilton, J. 3 Mr Colyer for the applicant submitted that that rule of practice did not apply in this case. It was expressed as applying in the case of an interlocutory order of a substantive nature made after a contested hearing, in contemplation that it would operate until the final disposition of the proceedings. He submitted that the decision of Hutchinson v Nominal Defendant (1971) 1 NSWLR 443, on which McLelland, J. relied, confirmed that the principle applied in that sort of case. 4 By contrast, Mr Colyer submitted, cases such as Hall v Nominal Defendant (1966) 117 CLR 423, especially at 440, and Carr v. Finance Corporation of Australia Limited (1980-81) 147 CLR 247, especially at 248, showed that an order refusing to set aside a default or summary judgment does not finally dispose of the rights of parties, because it is open to the disappointed defendant to apply again to have the judgment set aside. It was that susceptibility of such an order to a further application which made it an interlocutory order, and the judgments of the High Court in those two cases did not suggest that later applications were subject to the limitations set out in Brimaud v Honeysett. 5 In my opinion, the principles underlying Brimaud v Honeysett are that litigation should come to an end and that there should not be repeated litigation of the same matters; and also that a single judge should not, in substance, sit on appeal from a decision of another single judge. Those two principles apply with at least as much force to an interlocutory order of the kind under consideration here, as to the kind of interlocutory order explicitly dealt with in Brimaud v Honeysett. 6 In my opinion, the same ordinary rule of practice applies to cases of this kind as to cases of the kind discussed in Brimaud v Honeysett. That does not mean that second applications will never be entertained unless those requirements are satisfied. However, it does, I think, mean that a very powerful case based on the interests of justice would need to be made out before those principles are departed from. 7 Mr Colyer has not submitted that there is in this case any relevant change of circumstances or any relevant new material that could not have been presented to Hamilton, J. However, he does suggest that there are very powerful considerations of justice that would justify entertaining the second application. In particular, he referred me to statements appearing on page 6 and in paragraph 9 of the judgment of Hamilton, J. of 22 November 2000, in which Hamilton, J. said that it seemed to him that the judgments were obtained upon the basis of flawed calculation, or flawed material. 8 That seems to be based on the circumstance that an initial affidavit by the liquidator did not allow certain expenses that should have been allowed, and that, while there was a later affidavit of the liquidator giving an allowance of $210,000, it was not entirely clear whether this sufficiently corrected the earlier mistake. 9 In my opinion, that is not enough to justify my acceding to the second application. The material does not affirmatively suggest that the error in the original affidavit was not corrected by the allowance of $210,000 nor, as I understand it, is it suggested that the judgments obtained did not give appropriate credit for the sum of $210,000. 10 In any event, it seems to me that what is suggested is that there was an error in Hamilton, J.'s judgment, and any such error should be corrected, normally, by an application for leave to appeal rather than by approaching another primary judge. 11 Mr Colyer also submitted that unless the second application is entertained, there will be matters of defence which the relevant defendants could never raise, notwithstanding the undertaking obtained by Hamilton, J. from the plaintiffs to ensure that the judgment did not prevent certain claims being raised by the defendants being pursued against the plaintiffs. 12 There is evidence that there could be as much as $270,000 by way of expenditure for the purposes of the plaintiffs, which the defendant would wish to rely on as defences, if permitted, which may not be capable of being raised as positive claims against the plaintiff companies. 13 However, it is not shown that the $210,000 already referred to is not itself part of the $270,000, and as pointed out by Mr Harper for the plaintiffs, although these proceedings have been on foot, it seems, for four years, it was only in material filed in this second application that the defendants for the first time presented any detail in relation to this alleged expenditure of about $270,000. 14 In my opinion, this is not shown to be a case in which a second application should be entertained where no change of circumstances or fresh material is advanced. 15 For those reasons, I propose to dismiss the application. 16 Mr Colyer has also submitted a draft Notice of Motion and sought leave to file it. This Notice of Motion seeks leave to the first defendant to bring a Statement of Claim against the plaintiffs, being companies in liquidation. The claims sought to be brought are those in respect of which the liquidator of the plaintiff companies gave an undertaking to Hamilton, J. that no defence relying on the judgments would be raised in relation to such claims. 17 It seems to me that, as long as it is clear that that undertaking means that, if a proof of debt is lodged in relation to those claims, the liquidator will not rely in any way on the judgments as a ground for rejecting the proof of debt, there doesn't appear to be prima facie justification for giving leave to commence proceedings against the companies in liquidation. It seems to me this is a matter that would, in the ordinary course, be dealt with by proof of debt, and if complaint is made about rejection for proof of debt, then appropriate challenging of that rejection. 18 Of course, if the liquidator wished to take the point that his undertaking was only not to raise a defence if proceedings were brought, then that might give a ground for giving leave to bring the proceedings. However, at this stage, as I understand it, the liquidator does not take that position. 19 It would be open, as I see it, for the defendants to bring a Notice of Motion by filing it in the Registry and obtaining a return date. However I do not think a ground is made out for me to accelerate that process by giving leave today to file the Notice of Motion in Court. 20 The orders that I make are these. 21 I dismiss the defendant's Notice of Motion filed 27 November 2000. 22 I order that the applicants pay the respondent's costs of the Notice of Motion. 23 I dismiss the plaintiff's Notice of Motion filed 8 December 2000. 24 No order as to costs of that Notice of Motion ********