Goater v Commonwealth Bank of Australia (No 2) [2014] NSWCA 412

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Goater v Commonwealth Bank of Australia (No 2) [2014] NSWCA 412 Hearing dates: On the papers Decision date: 05 December 2014 Before: Basten JA at [1]; Gleeson JA at [10]; Sackville AJA at [11] Decision: (1) Dismiss the notice of motion filed 20 November 2014. (2) The applicants must pay the Bank's costs of the motion. [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: COSTS - appeal - application for indemnity costs - whether conduct of respondent prior to the default judgment justified order for indemnity costs of the appeal - whether conduct of unsuccessful respondent to appeal justified indemnity costs order

PRACTICE AND PROCEDURE - appeal - default judgment set aside on appeal - request that Court make orders in respect of proceedings in the Common Law Division - Uniform Civil Procedure Rules 2005 (NSW), rr 9.1, 14.3 and 36.16 Cases Cited: Botany Municipal Council v Secretary, Department of Arts, Sport, Environment, Tourism and Territories (1992) 34 FCR 412 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 88 ALR 397 Goater v Commonwealth Bank of Australia [2014] NSWCA 382 Harrison v Schipp [2001] NSWCA 13 NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480; 109 FCR 77 Category: Procedural and other rulings Parties: Shirley Goater (First Applicant) Terrence Goater (Second Applicant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: Mr N Hill (Solicitor) (Applicants) Mr AC Casselden/Ms N Dewan (Respondent) Solicitors: Australegal (Applicants) Gadens (Respondent) File Number(s): CA 2014/182391 Decision under appeal Jurisdiction: 9111 Citation: Commonwealth Bank of Australia v Goater [2014] NSWSC 652 Date of Decision: 2014-05-22 00:00:00 Before: Davies J File Number(s): SC 2012/332699