Lee v Dow [2016] NSWSC 1404

Supreme Court New South Wales

Medium Neutral Citation: Lee v Dow [2016] NSWSC 1404 Hearing dates: 8 September 2016 Date of orders: 05 October 2016 Decision date: 05 October 2016 Jurisdiction: Common Law Before: Garling J Decision: (1) Notice of Motion filed 5 August 2016 is dismissed. (2) Plaintiff is to pay the defendant's costs of the Motion. Catchwords: PROCEDURE – civil – Notice of Motion seeking stay of Local Court judgment refusing to set aside default judgment – where application seeking leave to appeal Local Court judgment has been made to the Supreme Court – whether appeal is reasonably arguable – whether balance of convenience favours the grant of a stay Legislation Cited: Local Court Act 2007 Uniform Civil Procedure Rules 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Honor Lee (Plaintiff) Kathleen Dow (Defendant) Representation: Counsel: K Foley (P) P Glissan (D) File Number(s): 2016/236665 Publication restriction: Not Applicable

Judgment 1. On 10 July 2015, the defendant in the present proceedings, Kathleen Dow, obtained a default judgment against the plaintiff in these proceedings, Honor Lee, in the Local Court at Wagga Wagga in the sum of $42,984.69 plus costs. 2. In short compass, that judgment was based upon a claim that Mrs Dow had brought in the Wagga Wagga Local Court arising from a loan of $30,000 that she had made to Ms Lee in 2011. Ms Lee did not dispute that the loan was made, that she had made repayments on it up until 31 August 2012, and that she had not made any repayments since that time. 3. In mid-2016, Ms Lee made application in the Wagga Wagga Local Court to set aside the default judgment. That application was heard by Kennedy LCM on 8 July 2016. For the reasons which she expressed orally, Kennedy LCM dismissed Ms Lee's application to set aside the default judgment. 4. On 5 August 2016, Ms Lee commenced proceedings in this Court by way of Summons seeking leave to appeal against Kennedy LCM's decision. Ms Lee also sought, by Notice of Motion filed on that day, an order staying execution of the default judgment until the determination of the appeal against Kennedy LCM's decision. 5. On 31 August 2016, the Notice of Motion came before Rothman J. His Honour stood over the hearing of the Motion to 8 September 2016 so that the transcript of Kennedy LCM's reasons could be made available to the Court. His Honour granted a stay until that date. 6. On 8 September 2016, the Notice of Motion came before me in the Duty List. The transcript of Kennedy LCM's reasons was provided. 7. For the reasons which follow, I am unpersuaded that a stay of the judgment ought to be granted. The Notice of Motion of 5 August 2016 will be dismissed with costs.