Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333

New South Wales Court of Appeal

CITATION: Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333

JUDGMENT DATE: 5 December 2008

JUDGMENT OF: Allsop P at 1; Campbell JA at 6; Macfarlan JA at 7

(a) Appeal allowed. (b) Set aside the judgment and orders of Brown LCM of 8 May 2007 other than his order striking out the appellant's defence. DECISION: (c) Remit the matter to the Local Court to receive from the respondent an "affidavit in support" complying with the terms of Rule 16.6(2) of the Uniform Civil Procedure Rules and to give judgment for the respondent in such amount, if any, as it considers appropriate. (d) Order the respondent to pay the appellant's costs of the appeal to Harrison As J, with the respondent to have a certificate under the Suitors' Fund Act 1951 concerning those costs if qualified. (e) Order the appellant to pay the respondent's costs of the appeal to this Court.

CATCHWORDS: PRACTICE AND PROCEDURE - appellant's defence struck out - entry of monetary judgment for respondent - power of magistrate to give judgment for specific amount - lack of evidence of existence and quantum of debt - Uniform Civil Procedure Rules 16.3(2), 16.6, 12.7(2) - Civil Procedure Act 2005 s 61(3)(c), s 14 - affidavit in support - point at issue not taken below - whether prejudicial to respondent

Civil Procedure Act 2005 LEGISLATION CITED: Local Courts Act 1982 Suitors' Fund Act 1951 Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Suttor v Gundowda Pty Limited [1950] HCA 35; (1950) 81 CLR 418 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491