Crawford v Timms [2020] NSWSC 380

Supreme Court New South Wales

Medium Neutral Citation: Crawford v Timms [2020] NSWSC 380 Hearing dates: 6 March 2020 Date of orders: 09 April 2020 Decision date: 09 April 2020 Jurisdiction: Common Law Before: Beech-Jones J Decision: In respect of the document which is pages 33 to 34 of Exhibit JMT1 to the affidavit of Jacinta Maree Tynan sworn 19 February 2020, the Court notes the undertaking of the plaintiff by his counsel in accordance with r 31.13(2) of the UCPR.

The Court orders that: (1) Pursuant to Uniform Civil Procedure Rule 31.13(2), specify that the relevant time for the plaintiff to forward to the Chief Commissioner of State Revenue the name and address of the persons liable to pay duty is 28 days from the date of this judgment; (2) The default judgment entered against the Second Defendant on 31 December 2019 be set aside; (3) On or before 30 April 2020 the plaintiff file and serve any amended statement of claim; (4) On or before 21 May 2020 the second defendant file and serve her defence; (5) The second defendant pay the plaintiff's costs of his application for default judgment; (6) Reserve costs in respect of the notice of motion filed by the second defendant on 19 February 2020; (7) Direct the plaintiff and second defendant by 5.00pm on 7 May 2020 to each file and serve submissions in respect of the costs of the second defendant's notice of motion filed 19 February 2020 such submissions not to exceed four pages; (8) Grant the plaintiff and second defendant liberty to file and serve submissions in reply on costs by 14 May 2020 such submissions not to exceed two pages; (9) There be liberty to apply to Beech-Jones J on 2 days notice; (10) The matter be listed for further directions before Beech-Jones J on 28 May 2020 at 9.30am. Catchwords: DEFAULT JUDGMENT – application to set aside – alleged vendor loan concerning purchase of property – statement of claim sues upon transaction suggesting vendor loan part of purchase price of $1.8million – plaintiff truly alleges purchase price of $2.8million – defendant denies loan – defendant says paid $1.8million in full – defendant acknowledged indebtedness but not debt sued upon – transaction arguably structured to avoid stamp duty – whether proper explanation for delay – judgment set aside – undertakings in respect of unstamped instruments – implied undertaking – affidavits read in other proceedings Legislation Cited: Contracts Review Act 1980 Duties Act 1997 Evidence Act 1995 Family Law Act 1975 (Cth) Limitation Act 1969 National Consumer Credit Protection Act 2009 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 Ash Street Properties Pty Ltd v Pollnow (1987) 9 NSWLR 80 British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) (2003) 8 VR 571; [2003] VSCA 43 Dai v Zhu [2013] NSWCA 412 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Morony v Reschke [2017] NSWSC 544 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 Tynan & Timms [2020] FamCA 57 Universal Music Australia Pty Ltd v Pavlovic; Pavlovic v Universal Music Australia Pty Ltd (No 2) [2017] NSWSC 314 Category: Procedural and other rulings Parties: John Alan Crawford (Plaintiff/Respondent) Liam Jerome Timms (First Defendant) Jacinta Maree Tynan (Second Defendant/Applicant) Representation: Counsel: ML Einfeld QC; M Hazan (Plaintiff) J Simpkins (First Defendant) JD Cook (Second Defendant)