Batiste v Gilmour-Latham [2001] NSWCA 392

New South Wales Court of Appeal

CITATION : Batiste v Gilmour-Latham [2001] NSWCA 392 FILE NUMBER(S) : CA 40458/01 HEARING DATE(S) : 31 October 2001 JUDGMENT DATE : 31 October 2001

PARTIES : Donna Batiste - Appellant Susan Gilmour-Latham - Respondent JUDGMENT OF : Giles JA at 1; Heydon JA at 26; Hodgson JA at 27

LOWER COURT JURISDICTION : District Court LOWER COURT DC 3543/99 FILE NUMBER(S) : LOWER COURT Bowden ADCJ (30/3/01); Cooper DCJ (1/6/01 & 21/6/01) JUDICIAL OFFICER :

COUNSEL : R G McHugh - Appellant T S Murphy - Respondent SOLICITORS : Horowitz & Bilinsky - Appellant Andreones - Respondent CATCHWORDS : JUDGMENT - setting aside on terms - whether can be a term that defendant provide security for amount claimed - whether on facts the amount ordered as security was appropriate. ND CASES CITED: Conners v Acheron Pty Ltd (No 2) (1996) 1 Qd R 243; M V Yorke Motors v Edwards (1982) 1 All ER 1024. DECISION : In relation to the order of Bowden ADCJ leave to appeal is refused; in relation to the orders of Cooper DCJ leave to appeal is granted, but the appeal is dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40458/01 DC 35423/99 GILES JA HEYDON JA HODGSON JA Wednesday 31 October 2001 DONNA BATISTE v SUSAN GILMOUR-LATHAM

Judgment 1 GILES JA: This is an application for leave to appeal against the decisions of Bowden ADCJ given on 30 March 2001 and Cooper DCJ given on 1 June 2001 and 21 June 2001, and in the case of the first of these decisions for an extension of the time within which to seek leave to appeal. The application has been heard as if an appeal, so that if leave be granted a further hearing will be unnecessary, and the submissions have therefore addressed the substance as well as matters relevant to leave to appeal. 2 The claimant properly concentrated on the key issue arising in the application, which I will identify shortly, but some background is necessary. 3 At some time in 1999 the opponent brought proceedings against the claimant to recover money which she said had been lent to the claimant. According to an amended statement of liquidated claim filed in May 1999 the claim was for three amounts of money lent in 1991 and four amounts of money lent in 1996, on various occasions in each of those years. It was alleged that the total amount lent was some $179,000 of which nearly $70,000 had not been repaid, and the claim was to the $70,000 plus interest. I have rounded the figures off and will continue to do so when I refer to figures hereafter. 4 A defence filed by the claimant in March 2000 denied some of the loans, admitted other of the loans and pleaded the statute of limitations in relation to the 1991 loans. 5 A further amended statement of liquidated claim was filed in November 2000 which altered the amounts involved slightly, but not in a way which need be recounted now, and in the manner it was framed at least foreshadowed a reply to the statute of limitations defence by virtue of confirmation; it also added a cause of action which would pick up the 1991 loans, namely that all loans had been consolidated with a new promise to repay at some time in 1996. Perhaps this was in order to seek to overcome the statute of limitations defence. We do not know. 6 Judgment was entered against the claimant on 29 January 2001. The evidence as to that is not in an entirely satisfactory state, but the judgment was entered either as a judgment by default for want of a defence to the further amended statement of liquidated claim or on an application for summary judgment, and was entered when there was no attendance on behalf of the claimant on the occasion on which the order for judgment was sought. Affidavits from the claimant filed in support of her later applications to set aside the judgment included that she was not aware that an order for judgment was being sought against her on 29 January 2001 and suggested a reason why her solicitor, apparently still on the record, did not attend or otherwise act on her behalf in relation to the application for an order for judgment. 7 In early February 2001 the claimant changed her solicitors, and at some time in March 2001 she filed a notice of motion seeking an order that the judgment entered on 29 January 30 March 2001. It was supported, if that be the right word, by a faxed copy of an affidavit sworn by the claimant on 30 March 2001, in which she explained in the manner I have indicated the non-attendance on 29 January 2001 and as to a defence on the merits said only that she wished to defend the proceedings and to file a defence to the further amended statement of liquidated claim and "I say that I have a good defence". Not surprisingly, Bowden ADCJ was unimpressed and declined to set aside the judgment. 8 In April 2001 the claimant filed another notice of motion seeking an order that the judgment be set aside. The notice of motion came before Cooper DCJ on 1 June 2001. It was supported, on this occasion the word being used more respectably, by an affidavit sworn by the claimant on 28 May 2001. The affidavit began with the same explanation for non-attendance on 29 January 2001, and went on to reasonably specifically deny some of the loans, deny any agreement for payment of interest on other of the loans, and state that it was desired to rely on the statute of limitations in relation to the 1991 loans. 9 Cooper DCJ expressed some scepticism about the bona fides of the claimant, given the history of the matter, but concluded that when she had sworn that she had a defence on the merits she was entitled to have it litigated. However, his Honour went on to say that he had power to impose terms. He said that the amount claimed was some $74,000 plus interest and that on a rough calculation the total claim would be something like $100,000 to allow for interest. He ordered that the judgment be set aside on terms that the claimant provide security for $100,000 in a form satisfactory to the Registrar on or before 22 June 2001, and that there be consequential leave to file a defence to the further amended statement of liquidated claim. 10 It was said before us, and was not contested, that in the hearing before his Honour there had not been any discussion of imposition of a term to do with security for the amount claimed by the opponent, and the claimant said that she had been denied procedural fairness in this respect. The claimant then filed a third notice of motion in which she sought an order that the previous order made by Cooper DCJ be vacated so far as his Honour imposed the term concerning the $100,000. 11 The notice of motion came before Cooper DCJ on 21 June 2001. There was a further affidavit from the claimant sworn on 20 June 2001, in which she gave evidence of her asset and income position and that of three companies which it appears she controlled intended to establish that it was not possible for her to provide the security the subject of the term. The essential submission to Cooper DCJ was that unless the term were removed, the order setting aside the judgment would be nugatory and the claimant would be unable to defend the proceedings. 12 Cooper DCJ declined to remove the term. His Honour referred to cases cited on behalf of the claimant in which a court had declined to make an order that security be provided because that would render nugatory the making of a principal order setting a judgment aside and letting a defendant in to defend. He said that the case before him was different, and that he had considered on 1 June 2001 that justice could be done only if the order to set aside the judgment was made subject to security being given, and he concluded - "If I accept the evidence of the defendant as stated in her affidavit sworn yesterday, then it appears she has no assets and no means whereby she can raise a security for the amount of $100,000 in a form acceptable to the Registrar. In some cases that might afford appropriate grounds for deleting the condition, but on the facts of this case it is not sufficient."