Arnold v Forsythe [2012] NSWCA 18

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Arnold v Forsythe [2012] NSWCA 18 Hearing dates: 30 January 2012 Decision date: 23 February 2012 Before: McColl JA at 1; Young JA at 2; Sackville AJA at 3 Decision: 1. Appeal allowed. 2. Orders made by Truss DCJ on 4 March 2011 be set aside. 3. The default judgment and orders made by Truss DCJ on 30 September 2010 and 14 October 2010 be set aside. 4. Remit to the District Court for hearing and determination Prayer 2(b) of the notice of appeal dated 19 August 2011. 5. The appellant pay the costs of the respondents: (a) thrown away by reason of the entry of default judgment on 30 September 2010, including the costs of the hearing on 30 September 2010; (b) thrown away by reason of the entry of default judgment on 14 October 2010, including the costs of the hearing on 14 October 2010; and (c) of and incidental to the appellant's notice of motion to set aside default judgment filed on 28 October 2010, including the costs of the hearing on 10 February 2011. 6. The respondents pay the appellant's costs of the appeal, including the costs of the application for leave to appeal. [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: PRACTICE AND PROCEDURE - default judgment - whether judgment given irregularly - whether plaintiff's claim was for a debt or liquidated sum - whether affidavit in support stated the source of the deponent's knowledge - whether plaintiff entitled to retain portion of the default judgment Legislation Cited: Civil Procedure Act 2005 District Court Act 1912 (NSW) Supreme Court Act 1970 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Australian Woollen Mills Pty Ltd v Commonwealth [1954] HCA 20; 92 CLR 424 Cameron v Cole [1944] HCA 5; 68 CLR 571 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22; 131 CLR 321 Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Dalgety Futures Pty Ltd v Poretsky [1980] 2 NSWLR 646 Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26; 19 VR 358 Fenato v Chief Commissioner of State Revenue [2010] NSWCA 80; 70 NSWLR 20 Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1 Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333 Livingston v Commissioner of Stamp Duties [1960] HCA 94; 107 CLR 411 McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 457 Rothwells Ltd Nommack (No 100) Pty Ltd (1988) 13 ACLR 421 Spain v Union Steamship Co of New Zealand Ltd [1923] HCA 21; 32 CLR 138 United Builders Pty Ltd v Mutual Acceptance Ltd [1980] HCA 43; 144 CLR 673 Texts Cited: Odgers, Pleading and Practice (5th ed 1912) Lindley & Banks on Partnership (19th ed, 2010) Category: Principal judgment Parties: Peter Munroe Arnold - Appellant