Singh v Ginelle Pty Ltd [2010] NSWCA 310

New South Wales Court of Appeal

CITATION: Singh v Ginelle Pty Ltd [2010] NSWCA 310

HEARING DATE(S): 26 October 2010

JUDGMENT DATE: 19 November 2010

JUDGMENT OF: Beazley JA at 1; Campbell JA at 2; Handley AJA at 67

(1) Grant leave to appeal from the decision of Latham J on 9 March 2010 in proceedings 292530 of 2009 in the Common Law Division of the Supreme Court of NSW but dismiss the appeal with costs. DECISION: (2) Application for leave to appeal from the decision of Palmer J given on 5 May 2010 in proceedings 113436 of 2010 in the Equity Division of the Supreme Court of NSW dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: PROCEDURE – setting aside a judgment – powers of the court – application to set aside judgment entered by consent and obtained in absence of a party is to be decided in accordance with standards appropriate to setting aside of consent judgments – court does not have a free-ranging discretion to set aside judgment entered by consent – power exercisable only in accordance with a specific set of principles identified in Harvey v Phillips (1956) 95 CLR 235 – PROCEDURE – setting aside a judgment – a challenge to an agreement in relation to consent orders and an application to overturn the subsequent consent judgment ought to be brought as independent proceedings – waiver of objection to application to overturn consent judgment being brought by notice of motion – EVIDENCE – burden of proof – party who seeks to overturn a first instance judgment has an onus of establishing that there is sufficient reason for it to be overturned – ABUSE OF PROCESS – when an application for final relief has been heard and rejected, it is an abuse of process to approach the court at first instance again seeking the same relief