Short v Burn [2012] NSWSC 695

Supreme Court New South Wales

Medium Neutral Citation: Short v Burn [2012] NSWSC 695 Hearing dates: 13 June 2012 Decision date: 26 June 2012 Before: Adamson J Decision: (1) Extend the time for the plaintiff's application for leave to appeal to 20 March 2012. (2) Grant leave to the plaintiff to appeal the order made by the Court below on 5 October 2011 that the plaintiff pay the defendant's costs of the motion filed on 17 August 2011 in the sum of $3,000. (3) Vary the order made by the Court below on 5 October 2011 that the plaintiff pay the defendant's costs of the motion filed on 17 August 2011 in the sum of $3,000 by substituting for the sum of $3,000, the sum of $1,500. (4) Grant leave to the plaintiff to appeal the order made by the Court below on 10 November 2011 dismissing the plaintiff's notice of motion filed on 20 October 2011 to set aside default judgment and the consequential order that the plaintiff pay the defendants costs of the motion. (5) Set aside the order made by the Court below on 10 November 2011 dismissing the plaintiff's notice of motion filed on 20 October 2011 to set aside default judgment. (6) Vary the order made by the Court below on 10 November 2011 that the plaintiff pay the defendant's costs of the notice of motion filed on 20 October 2011 to set aside default judgment by substituting an order that the costs of the motion be reserved. (7) Remit the matter to the Cowra Local Court to be determined according to law by a magistrate other than Stapleton LCM. (8) Unless a different application for costs is made by written application within seven days, order the defendant to pay the plaintiff's costs of the proceedings in this Court. Catchwords: PRACTICE AND PROCEDURE - evidence - affidavits - whether residential address is required on an affidavit PRACTICE AND PROCEDURE - application to set aside a default judgment - bona fide defence on the merits - whether failure to provide a residential address on an affidavit indicates a lack of bona fides PRACTICE AND PROCEDURE - appeal - costs - whether denial of natural justice Legislation Cited: - Civil Procedure Act 2005 - Local Court Act 2007 - Service and Execution of Process Act 1992 (Cth) - Uniform Civil Procedure Rules 2005 Cases Cited: - Cumming v Tradebanc International Ltd [2002] NSWSC 70 - N & G Electrical Group Pty Ltd v Terracon Industries Pty Ltd [2002] NSWSC 837 - Carr v Finance Company of Australia [1981] HCA 20; 147 CLR 246 - Zippoz Pty Limited v National Australia Bank Limited [2011] NSWCA 164 - Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463 - Seltsam Pty Ltd v Gahleb [2005] NSWCA 208 - House v The King (1936) 55 CLR 504 - Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 - Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503 - Kelly v Mosman Municipal Council [2010] NSWCA 370 - Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 - Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 - Evans v Bartlam [1937] AC 473 - Hession v Century 21 South Pacific (1992) 28 NSWLR 120 Texts Cited: - Spencer, Bower & Handley, Res Judicata (4th ed, 2009) Category: Principal judgment Parties: John Wayne Short (Plaintiff) John Burn (Defendant) Representation: Counsel: DM Jay (Plaintiff) JA Trebeck (Defendant) Solicitors: Rockliffs Solicitors (Plaintiff) Garden & Montgomerie (Defendant) File Number(s): 2011/397503