Hilton v Gidley [2009] NSWSC 383

New South Wales Supreme Court

CITATION : Hilton v Gidley [2009] NSWSC 383

HEARING DATE(S) : 12 August 2008, 3 September 2008, 15 September 2008, 3 October 2008, 17 October 2008, 13 November 2008, 17 March 2009, 2 April 2009, 21 April 2009

JUDGMENT DATE : 22 May 2009

JURISDICTION : Common Law

JUDGMENT OF : Hislop J at 1

I make the following orders: DECISION : 1. The notice of motion filed in Court on 26 May 2008 is dismissed. 2. The first, second, third and fourth defendants are to pay the plaintiff's costs of the notice of motion.

CATCHWORDS : PROCEDURE – submitting appearance – application for leave to withdraw appearance – absence of parties

LEGISLATION CITED : Uniform Civil Procedure Rules Contracts Review Act 1980

CATEGORY : Procedural and other rulings

CASES CITED : Firth v John Mowlem and Co Ltd [1978] 3 All ER 331 King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076

Norman Anthony Hilton (Plaintiff) Isobelle Gidley (First Defendant) PARTIES : Richard John Shears (Second Defendant) Daniel John Bickel (Third Defendant) Cynthia Frances Berkemeier (Fourth Defendant)

FILE NUMBER(S) : SC 12135/08

COUNSEL : A Cheshire (Plaintiff) First Defendant in person

SOLICITORS : McLachlan Thorpe Solicitors (Plaintiff) First Defendant in person

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Hislop J

22 May 2009

12135/08 HILTON V GIDLEY

JUDGMENT

Introduction 1 The plaintiff, by statement of claim filed on 8 May 2008, alleged that he loaned monies pursuant to a loan deed to the first and second defendants and that the third and fourth defendants agreed to provide an equitable mortgage over a property at Stanmore to secure the first and second defendants obligations under that deed. The plaintiff further alleged that the first and second defendants were in default under the loan deed. He sought various forms of relief against them and the third and fourth defendants. 2 On 26 May 2008 Mr Fordyce, solicitor, filed an appearance on behalf of each of the first to fourth defendants. The appearance stated that each of those defendants "submits to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs". 3 On 4 June 2008 an amended statement of claim was filed whereby the plaintiff added St George Bank Ltd and Fast Fix Loans Pty Ltd as fifth and sixth defendants respectively. These defendants filed appearances in July 2008. The plaintiff did not seek any relief from the fifth and sixth defendants, they being joined consequent upon observations made in King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076. 4 On 2 July 2008 the plaintiff filed a notice of motion seeking judgment and other orders against the first to fourth defendants consequent upon the submitting appearance. 5 On 23 July 2008 a notice of motion was filed on behalf of the first to fourth defendants seeking, relevantly, orders that "1. Leave be granted for the submitting appearance filed on 28 [sic 26] May 2008 to be withdrawn pursuant to r 12.5 of the Uniform Civil Procedure Regulations 2. The submitting appearance filed on 28 [sic 26] May 2008 be withdrawn."