Lin v Tang [2007] NSWSC 1193

New South Wales Supreme Court

CITATION : Lin v Tang [2007] NSWSC 1193

HEARING DATE(S) : 25/10/2007

JUDGMENT DATE : 25 October 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS : Appeal against refusal to set aside default judgment - many opportunities to file a defence - no denial of natural justice - interlocutory decision and leave

CASES CITED : Carr v Finance Corp of Australia Ltd (No 1) 147 CLR 246

PARTIES : Hui Fen Lin (Pl) Judy Tang (Def)

FILE NUMBER(S) : SC 12732/07

COUNSEL : Mr. H. Lu (Sol) In Person (Def)

SOLICITORS : Luminous Legal (Pl)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 71/06

LOWER COURT JUDICIAL OFFICER : n/a

LOWER COURT DATE OF DECISION : 18/05/2007

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

25 OCTOBER 2007

12732/07 Hui Fen Lin v Judy Tang

JUDGMENT 1 HIS HONOUR: The plaintiff and the defendant were parties to proceedings in the Small Claims Division of the Local Court. The claim was brought by the defendant. It was in the sum of $10,000,00, plus interest. Because the plaintiff failed to file a defence, default judgment was entered against her. For completeness, I should add that there is dispute between the parties as to whether or not the original process was served on the plaintiff. 2 Thereafter, she made applications to have the default judgment set aside and be given leave to file a defence. Despite having opportunities to file a defence (at least two), she failed to do so. She has ascribed this failure to poor English, ignorance of legal procedures and financial difficulties. 3 The final application made by her was refused. This took place on 18 May 2007. 4 On 31 May 2007, the plaintiff filed a Summons in this Court. It seeks to challenge what was done in the Local Court. She claims to have been denied natural justice. 5 The appeal was heard on 25 October 2007. Both parties appeared and relied on their respective affidavits. The plaintiff only was legally represented. There have been written submissions, together with the opportunity to supplement that material by oral argument. 6 What is appealed against is the decision not to set aside the default judgment on the plaintiff's final application. The decision was made following a contested hearing. Both parties were self-represented. No transcript of the hearing or reasons for decision are before this Court. The absence of this essential material presents the plaintiff with a formidable hurdle. There is a lack of evidence to suggest that in any way she was not given a reasonable opportunity to present her case or was in some other way denied a fair hearing. 7 An application to set aside a default judgment has been regarded as an interlocutory application and the refusal to set it aside has not been regarded as a final order (see inter alia Carr v Finance Corp of Australia Ltd (No 1) 147 CLR 246). Whether or not that approach has application in the present case has not been debated before me and for present purposes it does not have to be decided. 8 In the circumstances, it is inevitable that the Court comes to the conclusion that the evidence (such as it is) fails to support a contention that the plaintiff has been denied natural justice. What it does reveal is that she has in fact been given more than an adequate opportunity to file a defence and present her case. It seems to me that this appeal has been brought simply because she was unhappy with the decision below and is intent on frustrating the enforcement of the judgment entered against her. It should not be necessary to stress that the plaintiff has no "merits" appeal. 9 The reaching of this view suffices to dispose of this appeal. However, for completeness, I shall mention one other matter. 10 If leave is required the appeal is lacking in what might attract the grant of it. There is no evidence of manifest error. There is nothing that gives rise to any matter of public interest or question of principle.