Oberlechner v Herring Enterprises Pty Ltd [2008] NSWSC 364

New South Wales Supreme Court

CITATION : Oberlechner v Herring Enterprises Pty Ltd [2008] NSWSC 364

HEARING DATE(S) : 21 April 2008 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 21 April 2008

DECISION : Orders set aside. Plainitff to pay defendant's costs.

CATCHWORDS : PROCEDURE - Setting aside orders - Orders striking out plaintiff's summons and giving judgment on a cross claim made in plaintiff's absence - Orders entered - Defendant had written advising plaintiff of hearings - Plaintiff's evidence that he did not receive mail after eviction from premises - Wife corroborated that evidence

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

PARTIES : Alfred Oberlechner (Plaintiff) Herring Enterprises Pty Ltd (Defendant)

FILE NUMBER(S) : SC 4844/07

SOLICITORS : Mr Sisinni appearing as agent for Hilton King Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 21 APRIL 2008

4844/07 ALFRED OBERLECHNER v HERRING ENTERPRISES PTY LTD EX TEMPORE JUDGMENT 1 On 8 February 2008 an order was made dismissing the plaintiff's summons and granting leave for a cross-claim to be filed. 2 On 19 March 2008 judgment was given for the cross-claimant for $15,773.12 and a declaration made that the defendant was the owner of stock and other chattels left at premises vacated by the plaintiff. 3 The plaintiff seeks an order setting aside those judgments. At least one of them has been entered. 4 The affidavits read in opposition to the application contain copies of correspondence putting the plaintiff on notice that the hearings would take place. 5 By a letter of 7 December 2007 the plaintiff was informed that the defendant's application for judgment on its cross-claim would be fixed for hearing on 8 February 2008, reference being made to an application to strike out the summons. 6 In a letter of 14 February 2008 the plaintiff was advised that the cross-claim had been listed for hearing before the Supreme Court on 19 March 2008. 7 The plaintiff swears that he did not receive those documents. His wife swore an affidavit in which she indicated that after eviction from the premises at 8 Elizabeth Parade, Tura Beach, efforts to have mail redirected to them were fraught until recently when on 12 April 2008 Mr Oberlechner received an envelope containing copies of correspondence that he says he did not receive. 8 It was submitted that the court would not have made the orders unless satisfied by evidence of due service. The problem with that submission is that it pre-supposes that the plaintiff received documents addressed to him. That is not the case on the evidence presently before the court. 9 The Uniform Civil Procedure Rules 2005, r 36.16(2)(b) provides that the court may set aside or vary a judgment or order after it has been entered if it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for judgment or order. 10 The task of the court in dealing with such a matter is to weigh the competing interests. 11 On the one hand, there is an interest in finality of proceedings particularly when a defendant has obtained a judgment with apparent regularity. 12 On the other hand, what needs to be balanced against this interest is whether or not the plaintiff has been accorded justice by having had the opportunity to put his side of the argument. 13 I am not satisfied that he has, and in weighing the competing interests I have formed the view that the two orders should be set aside. 14 That exercise of discretion on my part comes at a price. I order the plaintiff to pay the defendant's costs thrown away by the setting aside of the two judgments. 15 I propose not to make any order for the costs of today's proceedings.