Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146 Hearing dates: 23 April 2013 Decision date: 06 June 2013 Before: Beazley P (at [1]); Barrett JA (at [2]); Ward JA (at [84]) Decision: 1. Appeal allowed. 2. Vary Order 3 made by the District Court on 23 January 2012 by: (a) omitting "30 September 2011,"; (b) omitting the words "such costs to be paid as agreed or assessed on the indemnity basis forthwith"; (c) substituting for the last-mentioned words "such costs to be as agreed or assessed on the indemnity basis in the case of the costs of 17 November 2011 and the ordinary basis in the case of the costs of 9 December 2011 and, in each such case, to be payable forthwith". 3. Set aside Order 4 made by the District Court on 23 January 2012. 4. Set aside the orders made by the District Court on 16 March 2012. 5. Remit the notice of motion filed by the appellant on 29 August 2011 to the District Court for hearing and determination. 6. That the respondent pay the appellant's costs of the 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: PROCEDURE - costs - where plaintiff obtains judgment in default of defence - application by defendant for order setting aside the default judgment - application adjourned on several occasions - orders made against defendant on 23 January 2012 in respect of costs of that and several earlier days, all such costs to be assessed on an indemnity basis and to be payable forthwith - where costs order had already been made in respect of one such day - whether the later order for that day should be set aside - whether assessment on indemnity basis warranted - PROCEDURE - order for payment of specified sum "on account of" costs already ordered - whether District Court had power to make such order - whether order made on wrong principle - defendant's pending application for order setting aside default judgment dismissed because of failure to pay the specified sum "on account of" costs already ordered - no attention to the merits of the case - whether the order of dismissal should be set aside Legislation Cited: Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, rules 2.1, 42.7(2), 47.21 Cases Cited: Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd (No 2) (2009) NSWSC 1409 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 House v The King [1936] HCA 40; (1936) 55 CLR 499 Kabat Investments Pty Ltd v Compleat Imports Pty Ltd [2002] VSCA 134 Keller v LED Technologies Pty Ltd (No 2) [2010] FCAFC 160 L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207 Mars UK Ltd v Teknowledge Ltd [1999] EWHC 226 (Pat) McCarthy v McCarthy [2010] NSWCA 103 Palmer v Clarke (1989) 19 NSWLR 158 Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443 Re Bruce (1886) 12 VLR 696 Williamson v Scarano [2011] NSWSC 1318 Williamson v Scarano [2012] NSWCA 432 Category: Principal judgment Parties: Terry Zisti - Appellant Bartter Enterprises Pty Ltd - Respondent Representation: E Chrysostomou - Appellant B DeBuse - Respondent Appellant in person Kreisson Legal- Respondent File Number(s): 2012/91125 Decision under appeal Before: Rolfe DCJ File Number(s): 2011/37013