New South Wales Supreme Court CITATION : Lawteal Pty Limited v Ofo [2005] NSWSC 984 HEARING DATE(S) : 28 September 2005 JUDGMENT DATE : 11 October 2005 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The notice of motion is dismissed; the defendant is to pay the costs of the notice of motion. CATCHWORDS : Application to set aside default judgment - dismissal order made by Registrar (by consent or unopposed) - defendant brings application for review - attempt to turn review into a fresh hearing of application relying on different material - denial of natural justice - the nature of the review process and the admission of further evidence - it is received to facilitate the review process. LEGISLATION CITED : Uniform Civil Procedure Rules 2005, Rule 45.19 CASES CITED : Beaufort Air-Sea Equipment Pty Limited v Emhart Australia Pty Limited, unreported, NSWSC 18 December 1992 Lawteal Pty Limited (Plaintiff) PARTIES : Talilotu Ofo (Defendant) FILE NUMBER(S) : SC 10118/05 Mr A Rogers (Plaintiff) COUNSEL : Ms D Banwell (Defendant) R L Kremnizer & Co (Plaintiff) SOLICITORS : Liverpool Legal Aid Office (Defendant) LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 10118/05 LOWER COURT JUDICIAL OFFICER : Assistant Registrar Howe - 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass 11 October 2005 10118 of 2005 Lawteal Pty Limited v Talilotu Ofo JUDGMENT 1 His Honour: The defendant is the owner of 21 Endeavour Street, Ruse (the property). She entered into a lending transaction with the plaintiff which was secured by mortgage over the property. It was of the nature of a refinancing exercise with the advance being used, inter alia, to pay out existing debts. 2 She used the services of a mortgage broker. A solicitor (Mr Price) acted for her in respect of the transaction. 3 The defendant made a default under the mortgage. The plaintiff commenced these proceedings seeking, inter alia, judgment in possession and for a monetary sum. Default judgment was entered in respect of the claim for possession. 4 The defendant brought an application in these proceedings. It sought, inter alia, a stay and/or setting aside of the default judgment. It was fixed for a hearing to take place on 27 May 2005. Prior to the hearing, the defendant obtained a grant of legal aid and acquired the services of a solicitor and barrister. 5 The application came on for hearing before Assistant Registrar Howe. Both parties were represented by counsel (Mr Rogers appeared for the plaintiff and Ms Banwell appeared for the defendant). 6 The hearing commenced. It was contemplated that the application to set aside the judgment would involve a very narrow point and involve just short legal argument about whether or not there was an arguable defence (it concerned s80 of the Consumer Credit Code). 7 The defendant read an affidavit sworn by Christopher Hynes (the solicitor for the defendant). It was also sought to read an affidavit prepared by the defendant herself and sworn on 13 May 2005. Unfortunately, it had not been served. It had not been seen by counsel for the plaintiff prior to the attempt made to read it. 8 The transcript records the following [at p2]:- Banwell: Certainly I take my friend's point. The substance of the affidavit I think essentially goes towards the explanation of the delay on the part of the defendant in this matter. Rogers: If it only goes to delay I'm not troubled. Perhaps I should put it this way: if it's relating to some other purpose later on I'll make a complaint then. 9 The affidavit of the defendant was received on that basis. No further evidence was placed before the Registrar. A subsequent attempt to rely on the affidavit for other purposes was met with objection. 10 Ms Banwell made submissions in chief and Mr Rogers responded to those submissions. 11 Ms Banwell then proceeded to make submissions in reply. During an exchange between the Registrar and Ms Banwell, the transcript records the following [at p11]:- Assistant Registrar: Do you want to set aside the default judgment or do you want to extend the stay on the writ while you re-finance because at this stage I don't see any utility in setting aside the judgment? Banwell: We seem to be having some difficulty explaining some of the concepts to our client and we'd just ask if we might have some time to perhaps have a conference with her? Assistant Registrar: Yes. 12 The defendant was granted a short adjournment. Following the resumption of the hearing after that adjournment, the transcript records the following:- Banwell: Thank you for the time, Registrar. My solicitor is actually confirming written instructions with my client. She seeks to stay the default judgment. She seeks to re-finance the property. She is looking for another job. Her son is looking for a job and she is asking if the Court might grant her a period of six months in order to arrange that. 13 The Registrar then heard from Mr Rogers on the question of the proposed stay. The transcript records the following [at p12]:- Assistant Registrar: What I propose to do is make these three orders: 1. Extend stay on execution on the default judgment of 30 March to 9am, Friday 17 June, 2005. 2. Defendant to serve evidence as to re-financing by 15 June, 2005 and hand up on 17 June. 3. Stood over to the Registrar's applications list at 9am 17 June, 2005. Anything further? Rogers: Registrar, there is probably is one thing, you probably should formally dismiss the motion, otherwise it's theoretically still hanging around. Assistant Registrar: All right. 4. Defendant's notice of motion of 4 May, 2005 dismissed. 14 It may be thought that the intention behind the request for and the making of the order was to effect a dismissal of the application to set aside the default judgment. 15 On 23 June 2005, the defendant filed a notice of motion seeking, inter alia, a review of the order of the Registrar to dismiss the notice of motion (the dismissal order). The Registrar fixed a hearing date for the review (28 September 2005). 16 The review came on for hearing on the allocated day. At the commencement of the hearing, the court sought to advise counsel for the defendant of its concern that the proposed review may be misconceived and that perhaps other action (including a fresh application to set aside the default judgment) may be the appropriate course to follow. The defendant was given a short adjournment for the purposes of a consideration of her position and the giving of instructions. 17 Following the short adjournment, the court was informed that the defendant was desirous of pressing ahead with the review. It soon became obvious that the defendant was endeavouring to have a fresh hearing of the application to set aside the default judgment (relying on material different to that which had been placed before the Registrar), rather than a review of the order. 18 There are numerous authorities on a nature of a review. There are many decisions concerning the review of a decision of a Registrar. In some respects, the authorities throw up a divergence of views. 19 Despite the divergence, some matters seem to be non-controversial. The decision of the Registrar stands until it is set aside. A review is not a fresh hearing with the parties being placed in the same position as they were before the Registrar. A review is in the nature of a second look at the decision of the Registrar. There has to be a basis shown for the setting aside of the decision. 20 Generally speaking, a review of this nature is conducted having regard to the material that was placed before the Registrar. Under the Uniform Civil Procedure Rules 2005, the court is empowered to conduct a review of a registrar's direction or order or any other act. That power is conferred by Rule 45.19. Like its predecessor, there is no express discretionary power to admit fresh evidence. The rule leaves the conduct of the review at large and in the discretion of the court. It seems to be accepted that there may be cases in which it is appropriate to receive further evidence (Beaufort Air-Sea Equipment Pty Limited v Emhart Australia Pty Limited, unreported, NSWSC, Master Malpass 18 December 1992). 21 Under the old regime, the power to admit further evidence was sparingly used. When it was used, it was done so for the purpose of facilitating the review process. It was not intended to be used as a vehicle to abort the review process and turn the review into a fresh hearing (which could be expected to throw up new issues) that made what happened before the Registrar an irrelevant piece of history. 22 The defendant persisted with her endeavour to turn this review into a fresh hearing of the application to set aside the default judgment. She sought to read only two new affidavits that had been sworn subsequent to the hearing before the Registrar (it was originally not intended to rely on the material that the defendant had placed before the Registrar). Both of the new affidavits were objected to and rejected. 23 One of the two affidavits was sworn by the plaintiff on 7 September 2005. It was a bulky affidavit. It contained considerable material that had not been placed before the Registrar and which was intended to address questions of the defendant having a defence on the merits. It was material that could have been expected to be available to the defendant prior to 27 May 2005 and it was not said that it was unavailable. 24 The other affidavit was a further affidavit sworn by Mr Hynes on 8 September 2005. It purported, inter alia, to annex a draft of a proposed defence and cross-claim which was different to that which had been before the Registrar. 25 In undertaking the review, save for the transcript of the proceedings before the Registrar, the court ultimately received only the material that had been placed before him. 26 After undertaking the review, I have come to the view that no basis has been shown for the disturbing of what was done by the Registrar. 27 I shall now briefly refer to certain of the matters which were agitated during submissions. 28 It was contended that there had been a denial of natural justice. In my view, that contention was devoid of foundation. 29 Whatever problems may have been encountered by the defendant during or as a consequence of what took place before the Registrar flowed from either the conduct of the defendant herself or her legal advisors. 30 Whilst during exchange with counsel, for the purposes of assisting the parties, the Registrar did convey his thought processes at that time as to the utility of the application to set aside the default judgment, he did not purport to express any final or concluded view and did not preclude the defendant from the opportunity of proceeding with the application to set aside the default judgment should she have chosen to do so. 31 The defendant had the benefit of a short adjournment (so that her legal advisors could have a conference with her). A decision was made by the defendant not to proceed with that application. The material supports the view that this decision was made after having received advice from her legal representatives. It was this decision that led to the making of the dismissal order. 32 Counsel for the plaintiff made the application for dismissal. It might be thought to be the obvious consequence of the defendant deciding not to proceed with that application. It was a formality following the court being informed of the decision made by the defendant. Whilst she could have done so, it appears that counsel for the defendant chose not to make any submissions on the matter. The defendant stood by and allowed the Registrar to make the dismissal order. 33 In my view, the dismissal order can only be regarded as either a consent order or an order that was not opposed by the defendant. 34 Counsel for the defendant did seek to make submissions on the defendant's entitlement to relief pursuant to the Contracts Review Act. This was not a matter that had been ventilated before the Registrar. It was not a matter that had evidentiary support either before the Registrar or this court. 35 There was also a repetition of argument concerning the alleged defence raised before the Registrar. The plaintiff conceded for the purposes of the application that it had not given notice pursuant to s80 of the Consumer Credit Code. The plaintiff took the stance that this was of no consequence by reason of the Consumer Credit Code declaration made by the defendant on 20 April 2004 (a declaration that the credit to be provided to her by the credit provider was to be applied wholly or predominantly for business or investment purposes). The defendant sought to counter this problem by saying that the declaration was made after (rather than before) she had entered into the credit contract and that the plaintiff knew or had reason to believe, at the time the declaration was made, that the credit was in fact to be applied wholly or predominantly for personal, domestic or household purposes. Unfortunately for the defendant, there was a lack of evidentiary support for either of these propositions, both before the Registrar and this court. 36 The notice of motion is dismissed. The defendant is to pay the costs of the notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.