Ferguson v DDEC Detroit Specialists Pty Limited [2017] NSWSC 416

Supreme Court New South Wales

Medium Neutral Citation: Ferguson v DDEC Detroit Specialists Pty Limited [2017] NSWSC 416 Hearing dates: 13 April 2017 Date of orders: 13 April 2017 Decision date: 13 April 2017 Jurisdiction: Common Law Before: Bellew J Decision: 1 The time for the filing of the service of the summons in these proceedings is extended to 19 January 2017. 2 The appeal is allowed. 3 The orders made in the Local Court on 22 September 2016 are set aside. 4 The order made in the Local Court on 22 December 2016 is set aside. 5 The proceedings are remitted to Magistrate Walker at the Macksville Local Court to be dealt with according to law. 6 By agreement between the parties, each party is to pay its own costs of, and incidental to, the proceedings in this Court. Catchwords: PRACTICE AND PROCEDURE – Determination of Magistrate to strike out a defence and enter judgment – Where proceedings had been listed before the Court for mention/directions only – Lack of clarity as to the terms of the orders made and the powers purportedly exercised by the Magistrate – No evidence to support the orders made by the Magistrate irrespective of what powers were purportedly exercised – Failure on the part of the Magistrate to have regard to relevant provisions of the Civil Procedure Act 2005 (NSW) – Errors established

PRACTICE AND PROCEDURE – Application by plaintiff to set aside orders for judgment made by Magistrate – Where application was refused – Where the determination of the Magistrate was apparently based upon the view that more appropriate course was to lodge an appeal against the primary decision to the District Court – Where no such right of appeal was available – Error established Legislation Cited: Civil Procedure Act 2005 (NSW) Local Court Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Hans Pet Constructions Pty Limited v Cassar (2009) NSWCA 230 Category: Principal judgment Parties: John Ferguson – Plaintiff DDEC Detroit Specialists Pty Limited – Defendant Representation: Counsel: P. Batley - Plaintiff D. F Elliott – Defendant