Commonwealth Bank of Australia v Kingston Bake Pty Ltd ACN 074 482 134 [2016] NSWSC 131

Commonwealth Bank of Australia v Kingston Bake Pty Ltd ACN 074 482 134 [2016] NSWSC 131

The power in UCPR r 36.16 to set aside orders made in the absence of a party applies even to orders dismissing proceedings under UCPR r 12.8(7), as procedural fairness and natural justice require affected parties be allowed to approach the Court to explain and seek rescission if appropriate. There was no prejudice to defendants, and the overriding purpose of the Civil Procedure Act 2005 supported vacation of the orders.

Parties
Plaintiff/applicant: Commonwealth Bank of Australia; First Defendant/first Respondent: Kingston Bake Pty Ltd ACN 074 482 134; Second Defendant/second Respondent: Edward John Piper; Third Defendant/third Respondent: Joanne Maree Piper
Jurisdiction
Australia
Judgment Date
11 February 2016
Procedural Posture
Possession / Application to Set Aside Dismissal Orders
Outcome
Orders made 7 September 2015 dismissing the proceedings set aside; proceedings restored; each party to bear own costs of the motion.
Legal Topics
Set Aside Judgment, Procedural Fairness, Dismissal of Proceedings
Civil Procedure Set Aside Judgment Procedural Fairness Dismissal of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Commonwealth Bank of Australia

Plaintiff/applicant

Kingston Bake Pty Ltd ACN 074 482 134

First Defendant/first Respondent

Edward John Piper

Second Defendant/second Respondent

Joanne Maree Piper

Third Defendant/third Respondent

Procedural Posture

Possession / Application to Set Aside Dismissal Orders

Legal Issues

  1. 1 Whether orders dismissing the proceedings under UCPR r 12.8(7) should be set aside under UCPR r 36.16
  2. 2 Whether UCPR r 12.8(7) excludes the operation of UCPR r 36.16 in setting aside orders made in absence of a party

Ratio Decidendi

The power in UCPR r 36.16 to set aside orders made in the absence of a party applies even to orders dismissing proceedings under UCPR r 12.8(7), as procedural fairness and natural justice require affected parties be allowed to approach the Court to explain and seek rescission if appropriate. There was no prejudice to defendants, and the overriding purpose of the Civil Procedure Act 2005 supported vacation of the orders.

Court Disposition

Orders made 7 September 2015 dismissing the proceedings set aside; proceedings restored; each party to bear own costs of the motion.

Orders

  • Orders issued on 7 September 2015 dismissing the proceedings are hereby set aside.
  • The proceedings are listed for further directions before the first Registrar's list on Monday 15 February 2016. Each party will bear their own costs of the motion.