Grave v Blazevic Holdings [2010] NSWCA 324

New South Wales Court of Appeal

CITATION: Grave v Blazevic Holdings [2010] NSWCA 324

HEARING DATE(S): 16 November 2010 JUDGMENT OF: Allsop P at 1; McDougall J at 2; Macfarlan JA at 40

EX TEMPORE JUDGMENT DATE: 16 November 2010

1. Application for leave to appeal granted. 2. Notice of appeal be filed and served within 7 days. 3. Appeal allowed. 4. Set aside the orders of the District Court (Delaney DCJ) made on 1 December 2009 and in lieu thereof: (a) set aside the default judgment and let in the defendant to defend the proceedings; and DECISION: (b) order that the costs of each of the plaintiff and defendant in the District Court relating to the motion to set aside the default judgment be costs in the proceedings. 5. Respondent pay the appellant's costs of the appeal including the application for leave to appeal. The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. Such order for costs be stayed until the resolution of proceedings.

6. The proceedings be removed from the District Court to the Supreme Court and placed in the Technology and Construction List. 7. The matter be listed for directions on Friday 26 November 2010 before the Technology and Construction List Judge with a view to the expeditious resolution of the question as to whether the applicant, Mr Grave, is a relevant party to the "construction contract" for the purpose of the Building and Construction Industry Security of Payment Act 1999 (NSW). 8. Set aside order 3 made by Young JA on 12 July 2010 concerning the provision of a guarantee. Any guarantee provided by or pursuant to order 3 of Young JA made on 12 July 2010 be delivered up to the applicant forthwith. 9. The applicant as defendant serve his defence on the respondent as plaintiff on or before 24 November 2010 and provide a copy to the Technology and Construction List Judge on 26 November 2010. 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.