Daleport Pty Ltd v Bank of Western Australia Ltd [2012] NSWCA 402

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Daleport Pty Ltd v Bank of Western Australia Ltd [2012] NSWCA 402 Hearing dates: 6 September 2012 Decision date: 12 December 2012 Before: Bathurst CJ (at [1]); Barrett JA (at [2]); Sackville AJA (at [15]) Decision: 1. Grant leave to appeal. 2. Appeal allowed. 3. Set aside the orders of Davies J entering summary judgment against Mr Walton. 4. Make no order as to the costs of the proceedings in this Court. [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 - costs - where appellant debtor challenges on appeal an order in fact not made at first instance - and respondent engages without realising that order not made - ultimate realisation by both parties that subject matter lacking - where appellant guarantor challenges interlocutory order below granting summary judgment against him - but guarantor permitted to defend like claims based on allied finance facilities - ultimate acknowledgement by both parties that summary judgment should be set aside - each party seeks its costs - how discretion as to costs should be exercised Legislation Cited: Trade Practices Act 1974 (Cth), s 87 Cases Cited: Wickstead v Browne (1992) 30 NSWLR 1 Category: Principal judgment Parties: Daleport Pty Ltd - First Appellant Alexander Raymond Walton - Second Appellant Bank of Western Australia Ltd - Respondent Representation: N Obrart - Appellants A S Bell SC/P J Dowdy - Respondent Ledger & Co Lawyers - Appellants Gadens Lawyers - Respondent File Number(s): 2012/30973 Decision under appeal Citation: [2011] NSWSC 819 Date of Decision: 2011-07-26 00:00:00 Before: Davies J File Number(s): 2008/287869