Damm v Coastwide Site Services Pty Ltd [2017] NSWSC 1361

Supreme Court New South Wales

Medium Neutral Citation: Damm v Coastwide Site Services Pty Ltd [2017] NSWSC 1361 Hearing dates: 6 October 2016 Date of orders: 12 October 2017 Decision date: 12 October 2017 Jurisdiction: Common Law Before: Garling J Decision: (1) The consent judgment entered on 6 May 2016 in favour of Leightons with respect to the plaintiff's claim is set aside. (2) Order that the consent judgment dated 6 May 2016 between the plaintiff and Leightons not be entered until further order of the Court. (3) Note that the proceedings between the plaintiff and Leightons have been resolved by agreement between them on the terms set out in the consent judgment dated 6 May 2016. (4) Order that Hauv's Rigging Pty Ltd is to provide security for costs of its cross-claim against Leightons within 28 days of agreement between the parties of the amount for such security, or in such sum as may be determined by the Court. (5) The Motion of Hauv's Rigging filed on 19 May 2016 be otherwise dismissed. (6) Costs of Hauv's Rigging's Motion filed on 19 May 2016 be costs in the cause. (7) Notice of Motion of Coastwide filed on 16 August 2016 is dismissed. (8) Coastwide is to pay Leightons' costs of its Notice of Motion. (9) Liberty to apply on 3 days' notice. Catchwords: CIVIL PROCEDURE – consent judgment – application to set aside – whether entered in bad faith – whether entitlement to be heard CIVIL PROCEDURE – consent judgment – absolution of defendant's liability to other defendant's in cross-claim CIVIL PROCEDURE – right to be heard – party affected by order or judgment SUPREME COURT – general jurisdiction under s 23 Supreme Court Act – whether permits setting aside of judgment otherwise prohibited by Uniform Civil Procedure Rules Legislation Cited: Civil Procedure Act 2005 Corporations Act 2001 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Arnold v Forsyth [2012] NSWCA 18 Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 BP Australia Ltd v Brown [2003] NSWCA 216 Coles v Burke (1987) 10 NSWLR 429 Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193 Pandurevic v Southern Cross Constructions (NSW) Pty Limited & Ors (No 1) [2011] NSWSC 1695 Raulfs v Fishy Bite Pty Ltd (No 3) [2013] NSWSC 1732 Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 Shirriff v Nominal Defendant [1999] NSWCA 152 Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354 Zakaria v Dr Noyce [2012] NSWSC 981 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Nga Marcus Damm (P) Coastwide Site Services Pty Ltd (D1) Leighton Contractors Pty Ltd (D2) Hauv's Rigging Pty Ltd (D3) Workers Compensation Nominal Insurer (D4) Representation: Counsel: M Perry (P) D S Weinberger (D1) R Cavanagh SC (D2) D A Lloyd (D3) D P Kelly (D4)