Murtough v Betham [2008] NSWSC 943

New South Wales Supreme Court

CITATION : Murtough v Betham [2008] NSWSC 943

HEARING DATE(S) : 3 April 2008 JURISDICTION : Common Law

JUDGMENT OF : Rothman J

EX TEMPORE JUDGMENT DATE : 3 April 2008

1. The application for adjournment and/or for telephone hearing is refused. 2. Pursuant to the orders issued on the previous date (i.e. 26 October 2007) and independently, all stays issued of the entry and execution of the default judgment be dissolved. DECISION : 3. All notices of motion of the plaintiff, including the motion to set aside the default judgment, be dismissed. 4. The stay on the second defendant's judgment on the cross-claim be dissolved. 5. The plaintiff to pay the defendants' costs (including all reserved costs) of and incidental to the proceedings, including all notices of motion, as agreed or assessed. 6. The cross-claim be stood over to the Registrar's List on 5 May 2008.

CATCHWORDS : PRACTICE – motion to set aside default judgment – continuing delay in processing motion – balance of interests of plaintiff and defendants – exceptional circumstances – no further indulgence warranted – no duty on count to require a party to take advantage of prior indulgences – further adjournment refused – motion dismissed – stay on entry and execution of judgment dissolved.

LEGISLATION CITED : Civil Procedure Act 2005

CATEGORY : Procedural and other rulings

Christopher George Murtough v Betham and Anor [2004] NSWSC 753 Maxwell v Keun [1928] 1 KB 841 CASES CITED : Murtough v Betham (Supreme Court of New South Wales, Rothman J, 17 February 2006, unreported) Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 Sullivan v Department of Transport (1978) 20 ALR 323