Elder & Ors v Cameron & Ors (No 2) [2007] NSWSC 984

New South Wales Supreme Court

CITATION : Elder & Ors v Cameron & Ors (No 2) [2007] NSWSC 984

HEARING DATE(S) : 31/07/2007

JUDGMENT DATE : 4 September 2007

JUDGMENT OF : Gzell J

DECISION : Application dismissed with costs.

CATCHWORDS : PROCEDURE - Setting aside orders - Orders not entered - Defendant in person failed to attend at trial - Specific performance of agreement entered into by her solicitor - Whether she established that by accident without fault on her part she had not been heard - Whether the Uniform Civil Procedure Rules 2005, r 36.16(1) applied - Whether counsel for the plaintiffs was under a duty to put her case - Whether this failure meant the orders were made irregularly or against good faith for the purpose of the Uniform Civil Procedure Rules 2005, r 36.15(1) - Whether entitled to have case re-opened - Whether any material relied upon would have altered the orders

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Ritchie's Supreme Court Procedure

Elder & Ors v Cameron & Anor [2007] NSWSC 743 Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672 CASES CITED : Autodesk Inc v Dyason (No 2) (1992-1993) 176 CLR 300 Smith v New South Wales Bar Association (1992) 176 CLR 256 Patterson v Cohen [2005] NSWSC 740 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134

Christopher Andrew Elder - First Plaintiff Maurice John McCarthy - Second Plaintiff Stuart Graeme Holden Tipple - Third Plaintiff Ranchmoore Pty Ltd - Fourth Plaintiff Bedizen Pty Ltd - Fifth Plaintiff PARTIES : Anthony Morton - Sixth Plaintiff Pamela Morton - Seventh Plaintiff Cameron Malcolm Bruce - First Defendant Tricia Mary Crane - Second Defendant