Young & anor v Outtrim [2010] NSWSC 1283

New South Wales Supreme Court

CITATION : Young & anor v Outtrim [2010] NSWSC 1283

HEARING DATE(S) : 29 September 2010 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 29 September 2010

DECISION : Order dismissing proceedings pursuant to UCPR r 13.6 be set aside. Plaintiff's solicitor to pay the defendant's costs of the notice of motion.

CATCHWORDS : PROCEDURE – whether Court has power to set aside order of dismissal under UCPR r 13.6. – COSTS – Legal practitioner – where costs incurred as a result of solicitor's oversights and omissions

(NSW) Civil Procedure Act 2005 s 99(1)(b), s 99(2) LEGISLATION CITED : (NSW) Family Provision Act 1982 (NSW) Uniform Civil Procedure Rules 2005 r 13.6, r 36.16

CATEGORY : Procedural and other rulings

Suzanne Elizabeth Young (first plaintiff) PARTIES : Julie Louise Grainger (second plaintiff) Marci Anne Outtrim (defendant)

FILE NUMBER(S) : SC 2009/288577

COUNSEL : M Thompson M Painter

SOLICITORS : Gerard Malouf & Partners (plaintiffs) Mason Lawyers Newcastle (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Wednesday, 29 September 2010

2009/288577 Young & Anor v Outtrim JUDGMENT (ex tempore)

1 HIS HONOUR: On 20 July 2010, the Registrar made an order dismissing the proceedings pursuant to (NSW) Uniform Civil Procedure Rules 2005 r 13.6. 2 Although there is no express power to restore proceedings so dismissed, I am satisfied that UCPR r 36.16, which empowers the Court to set aside a judgment or order, inter alia if the order was made in the absence of a party and, whether or not it had notice of the relevant hearing, is sufficient to authorise the Court, in the circumstances, to set aside the order dismissing the proceedings.