Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 Hearing dates: 18 August 2011 Decision date: 18 August 2011 Before: McColl JA at 1 and 24; Basten JA at 2 Decision: (1) Refuse the application to adjourn today's proceedings. (2) Direct that the judgment and orders of Adams J be taken to have been entered on 17 June 2009, this order having effect from that date. (3) Dismiss the summons seeking leave to appeal from the judgment of Garling J of 9 March 2011. (4) Direct that the order made on 10 August 2011, that the applicant pay the respondent's costs thrown away by the adjournment on that day, be entered forthwith. (5) Order that the applicant pay the respondent's costs of the application up to and including 12 July 2011. [Note: 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 - civil - reopening of judgment refused - application for leave to appeal - no draft defence supplied to support summary of argument - lapse of 2 years from original judgment PROCEDURE - civil - judgments and orders - orders to be entered into court's computerised record system - orders not properly entered - direction that orders taken to have been entered when made - Uniform Civil Procedure Rules 2005 (NSW), r 36.11 PROCEDURE - civil - parties - representation - no intention of appearing to present argument - whether appropriate to adjourn matter Legislation Cited: Civil Procedure Act 2005 (NSW), s 133 Uniform Civil Procedure Rules 2005 (NSW), r 36.11 Category: Principal judgment Parties: Sandra Lee Tarrant - Applicant Statewide Secured Investments Ltd - Respondent Representation: Counsel: No appearance for applicant P G Cutler - Respondent Solicitors: PJG Solicitors - Applicant Carroll & Associates - Respondent File Number(s): CA 2008/286952 Decision under appeal Citation: Statewide Secured Investments Ltd v Hawkins and Tarrant [2011] NSWSC 144 Date of Decision: 2011-03-09 00:00:00 Before: Garling J File Number(s): 2008/286952 Judgment 1McCOLL JA : Justice Basten will deliver the judgment. 2BASTEN JA : This matter involves an application for leave to appeal from a judgment of Justice Garling to which reference will be made shortly. When the matter was called this morning the applicant was not present in Court, nor were her solicitors or her barrister who appeared on the last occasion. However, her husband, Mr David Charles Hawkins, sought to hand up a letter signed by the applicant indicating the reasons for her non-attendance today. The Court has received that and considered the reasons set out in that letter. They basically involve the proposition that she is not financially in a position to continue to be represented by the solicitor who has filed a notice of appointment and who in effect, as the letter suggests, will probably cease to act in the matter if it is to proceed. 3Mr Hawkins indicated in some further submissions in support of the application for adjournment that he had difficulties in obtaining access to documents sent to the applicant in recent times. I will make further reference to those documents shortly. 4The applicant's written summary of argument, which proposed that the matter not be dealt with in the presence of the public or any person, indicates that the applicant then had no intention of appearing to present argument in support of the application. That is a circumstance which should be taken into account in considering the application for an adjournment today. 5In the light of those submissions, taken with the history of the matter to which I will refer, I do not consider it appropriate that the matter be adjourned again to allow the applicant some further opportunity to obtain pro bono assistance which has not been available to her so far. 6The procedural history underlying this matter reveals, not for the first time, disturbing aspects of the system of computerised court records, known by those familiar with the system as "JusticeLink". The system has two facets relevant to the present matter. First, it requires that a number be assigned to a matter; secondly, it requires that orders are "entered" as recorded in the computerised court record. To what extent the confusion revealed in this case is a function of the system, a function of the Uniform Civil Procedure Rules 2005 (NSW), or a function of the difficulties faced by Court staff, associates to judges and judges in administering the system, is unclear and need not be explored. 7In 2008, the respondent ("Statewide") commenced proceedings seeking a writ of possession in relation to certain property then owned by the applicant, Sandra Lee Tarrant, and her husband, David Charles Hawkins. Statewide also sought a judgment for a liquidated sum, which has since been satisfied in part by the sale of the secured property by Statewide, as mortgagee in possession. 8The proceedings were identified as matter no. 14583/08, but are now known as 2008/286952. It was understood by the parties, until quite recently, that judgment had been given by Adams J in the Possession List in the Common Law Division on 14 May 2009. Even at that stage, however, there was doubt about the form of the orders. The record made on that date read: "Confirm order made in accordance with the statement of claim in matter no. 14583/08. Stood over for 7 days before the duty judge." 9Understandably, this formula gave rise to some problems in entering the order, although the language set out above appears verbatim on the JusticeLink record. In addition to seeking judgment for possession and leave to issue a writ of possession (and costs) the statement of claim sought a judgment at a specified amount as at 28 August 2008, together with interest at a specified rate "on the judgment sum". The figure needed to be corrected in order to enter judgment. That calculation was undertaken and, on 17 June 2009, Adams J signed a minute recording the judgment in matter 14583 of 2008. 10Those orders were not entered in JusticeLink: rather, on 18 June 2009 the record identifies "Orders in accordance with SMO", together with a note of a stay. Thereafter, the history of the proceedings indicates that the parties treated the orders as contained in the short minutes of order as having been entered. 11The entry of a judgment or order of the Court is of crucial importance, because the judgment or order "may not be enforced until it has been entered in accordance with the uniform rules": Civil Procedure Act 2005 (NSW), s 133(1). The relevant rule provides: " 36.11 Entry of judgments and orders (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. (2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered: (a) when a document embodying the judgment or order is signed and sealed by a Registrar, or (b) when the judgment or order is recorded as referred to in sub-rule (2), whichever first occurs." 12The difficulty which arose in the present case (which is not unique) derives from the fact that there is no notation of the Court "ordering otherwise" for the purposes of r 36.11(2), nor directing that judgment be entered forthwith, for the purposes of sub-r (2A). 13As will be noted below, the present proceedings involve an application for leave to appeal from a judgment refusing to set aside the "judgment entered on 17 June 2009". The parties having acted on the basis that such judgment was entered and the judgment having been enforced at least to the extent of the issue of a writ of possession and the sale of the property, it is appropriate that this Court rectify the informality attending the orders of 17 June 2009. That may be done by this Court now ordering that the orders be taken to have been entered on 17 June 2009 and, pursuant to r 36.4(3), ordering that the direction be taken to have effect as at that date. 14There remains the application for leave to appeal. By an amended notice of motion, filed on 7 February 2011, the applicant sought to set aside the judgment referred to above. One ground of that application was that the judgment had been entered "irregularly" on 17 June 2009, because the judgment, in fact given by Adams J on 14 May 2009, was entered at a time when there was a stay in existence. It was that contention which required an understanding of exactly what orders were made, both on 14 May and 17 June, as discussed above. 15The second basis of challenge was that his Honour's judgment was not intended to include judgment for a specified debt, but only for possession of the secured property. The third reason given was that judgment was made (or entered) on 14 May 2009, at a time when the applicant was not personally present in the Court and the solicitor who had formerly been representing her had indicated to the Court that he could no longer act because of a perceived conflict of interest. 16On 9 March 2011 the motion was dismissed by Garling J: Statewide Secured Investments Ltd v Hawkins and Tarrant [2011] NSWSC 144. However, his Honour accepted that, because the judgment was given in her absence, the Court had a discretionary power to set the judgment aside, pursuant to UCPR 36.16. He declined to take that step because he was not satisfied that the applicant had a good defence upon which she could rely if judgment were set aside. He also dismissed the other grounds of challenge to the regularity of the judgment. 17An application for leave to appeal was filed on the last available day, namely 9 June 2011. A summary of argument filed in support of the application asserted a number of matters of fact, which, if they had been properly raised in a timely fashion, and were established, might have provided an arguable basis for a defence. However, more than two years after judgment was entered, they have never been reduced to an appropriate pleading. As explained by Garling J, if the applicant sought to rely upon a representation giving rise to an estoppel against Statewide, it would have been necessary to identify the conduct or statement relied upon with some precision, together with the basis of the reliance: [2011] NSWSC 144 at [85]-[88]. His Honour noted that no draft amended defence or affidavit had been filed: at [98]. That is still the case. 18In these circumstances, the application for leave to appeal should be dismissed. 19There remains a question of the costs of the proceedings in this Court. As I have indicated, in her summary of argument, the applicant indicated that the question of leave to appeal could be dealt with in the absence of the public and without the attendance of any person. The matter was listed for hearing because the respondent did not consent to such a course. Normally, in such circumstances, the applicant might have a basis for avoiding or limiting the usual order as to costs. However, when the matter was listed before the Court on 10 August 2011 counsel appeared for the applicant, although his instructing solicitors had not filed a notice that they acted and he was not in a position to advance any argument. The matter was then adjourned until today, the Court ordering that the applicant pay the costs thrown away by the day's adjournment. Because that order has not been entered either, the Court should direct that it be entered forthwith. 20When the matter came back before the Court today the circumstances were as noted above. The fact that the applicant was not represented had been forewarned by a communication from counsel who appeared on the last occasion that he did not expect to be present today. The Court takes note that that was a courtesy extended to the Court. There is as yet no notice that the solicitor has ceased to act although, from what Mr Hawkins has told the Court this morning it appears that they would not, if the matter were to proceed, be acting in the future. 21Between the two dates, namely the earlier hearing of 10 August 2011 and the hearing today, the respondent had prepared and filed an affidavit from its solicitor setting out the history of the proceeding and the steps taken to obtain orders in appropriate form. That activity was necessary in order to protect its position: however, the need to take such steps in order to regularize that position should not be at the expense of the applicant. In addition to the costs order made on the last occasion, there should be an order that the applicant pay the respondent's costs in this Court up to and including the filing and serving of the response to the summary of argument, on 12 July 2011. Otherwise there should be no further order as to costs. 22Accordingly, I propose the Court makes the following orders: (1) Refuse the application to adjourn today's proceedings. (2) Direct that the judgment and orders of Adams J be taken to have been entered on 17 June 2009, this order having effect from that date. (3) Dismiss the summons seeking leave to appeal from the judgment of Garling J of 9 March 2011. (4) Direct that the order made on 10 August 2011, that the applicant pay the respondent's costs thrown away by the adjournment on that day, be entered forthwith. (5) Order that the applicant pay the respondent's costs of the application up to and including 12 July 2011. 23McCOLL JA : I agree with Justice Basten's reasons and the orders his Honour proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2011