Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 479

New South Wales Supreme Court

CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 479 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 31 May 2002 JUDGMENT DATE : 31 May 2002

Alanbert Pty Limited (P1) Bernoth Realty Pty Ltd (P2) PARTIES : Bertram Bernoth (P3) Bulevi Pty Ltd (D1) Davhand Pty Ltd (D2) JUDGMENT OF : Hamilton J

COUNSEL : A Fairbairn (P1-3) W Lawrence, a director, by leave (D1 & 2) SOLICITORS : John Saroff & Company (P1-3) W Lawrence, a director, by leave (D1 & 2) CATCHWORDS : PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Effect of entering or recording judgment or order - General rule. LEGISLATION CITED : Trade Practices Act 1974 (Cth) Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296 CASES CITED : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338 De L v Director General New South Wales Department of Community Services No 2 (1997) 190 CLR 207 DECISION : Leave granted to defendants to file application to set aside judgment.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 31 MAY 2002

4528/97 ALANBERT PTY LTD & ORS v BULEVI PTY LTD & ORS JUDGMENT 1 HIS HONOUR: I have received a letter from Mr Lawrence, the director who has by leave been appearing for the defendants. He has sent a copy to the plaintiffs. He indicates that the defendants wish to make some application relating to the final judgment in the proceedings which I have now given: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338. People are entitled to make applications of that sort, but it cannot be done by letter. It must be done by motion supported by evidence. If the defendants wish to do that, then, whether the plaintiff likes it or not and whether it is convenient for the Court, it is their right to do so. 2 I should say that, whilst applications of that sort are sometimes granted, I should remind the defendants that, after final judgment, there is a high barrier to the success of such applications. I previously entertained an application by Mr Lawrence, on behalf of the defendants, to withdraw part of my reasons for judgment, which failed on the merits, but that application was made before final orders had been made. I had delivered reasons for judgment but the ensuing orders had not been made: see Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296. Now the final orders have been made. 3 In the case of De L v Director General New South Wales Department of Community Services No 2 (1997) 190 CLR 207 at 215 the majority of the High Court pointed out that there were various circumstances in which a judgment that had been passed could be set aside, but that in every case there is a heavy burden imposed upon the applicant for reopening to show that such an exceptional course is required without fault on his part, ie, without the attribution of neglect or default to the party seeking reopening, and that that is a barrier that must be surmounted by every such applicant. 4 If the defendants wish to proceed with a motion I shall, upon being approached, give leave to make such a motion returnable before me. It is appropriate that it should be returnable before me, as the Judge who has heard all the ins and outs of these very long proceedings and who gave the relevant judgment. 5 Application has also been made to me this morning for a further stay of the final orders. I am told that the events that have occurred are that the plaintiffs have filed a holding appeal on the one point which Mr Fairbairn, of counsel for the plaintiffs, earlier announced would be the subject of an appeal, but until this morning I was not able to make available, in corrected form, the reasons for the judgment appealed from. For the record, I am told that the defendants have also filed, in holding form, an appeal or an application for leave to appeal. As the conduct of the appeals has been incommoded by the lack of reasons, I am prepared to extend the holding regime for a further six weeks. That is, to protect the plaintiff's position, an interlocutory injunction, and to protect the defendant's position, a stay of proceedings. I repeat the warning that I gave earlier, that it is only on a short term basis that I, as a trial Judge, shall deal with the interlocutory regime during the hearing of appeals. Once the appeals are up and running the interlocutory regime will become a matter for the Court of Appeal. 6 Upon the plaintiffs giving to the Court the usual undertaking as to damages, I extend the existing injunction up to and including 12 July 2002 and I extend the existing stay of proceedings up to and including 12 July 2002. 7 Mr Lawrence has informed me that, despite what I have said earlier, the defendants wish to file an application for the setting aside of some part of the judgments and orders that I have made. I grant leave to the defendants to file a notice of motion for the setting aside of judgment returnable before me at 9.30am on 12 July 2002. I direct that each side deliver to the other and to my Associate any affidavits on which they intend to rely and a paginated bundle of all documents on which they intend to rely, whether already in evidence or not, as follows: the defendants on or before 25 June 2002 and the plaintiffs on or before 2 July 2002. I note that the defendants' address for service is 53 Aranda Drive, Davidson.