Savage v Soloman [2019] NSWDC 223

Savage v Soloman [2019] NSWDC 223

Although the Court had power under Part 36.16(2)(b) because the orders of 27 November 2017 were entered in the defendant's absence, the discretion to set them aside was not exercised. The defendant established only an arguable and triable but not strong defence; there was a significant unexplained gap as to why counsel briefed for the hearing did not attend; there was delay in filing and prosecuting the Notice of Motion, including the choice to pursue an unsuccessful appeal first; and the public interest in finality of judgments outweighed the factors favouring relief, including the size of the judgment and the importance of the matter to the defendant.

Jurisdiction
Australia
Judgment Date
04 June 2019
Procedural Posture
Civil Proceeding; Application to Set Aside or Vary Judgment and Final Orders / Notice of Motion Under Part 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (nsw) After Final Judgment Entered in the Defendant's Absence
Outcome
Notice of Motion filed 29 March 2018 dismissed; defendant ordered to pay the plaintiff's costs of the Notice of Motion as agreed or assessed.
Legal Topics
['setting Aside Judgment Made in Absence of a Party' 'uniform Civil Procedure Rules Part 36.16(2)(b)' 'non Appearance at Final Hearing' 'arguable Defence on the Merits' 'finality of Litigation' 'delay' 'costs']
['civil Procedure' 'contract Law'] ['setting Aside Judgment Made in Absence of a Party' 'uniform Civil Procedure Rules Part 36.16(2)(b)' 'non Appearance at Final Hearing' 'arguable Defence on the Merits' 'finality of Litigation' 'delay' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Proceeding; Application to Set Aside or Vary Judgment and Final Orders / Notice of Motion Under Part 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (nsw) After Final Judgment Entered in the Defendant's Absence

Legal Issues

  1. 1 ["Whether the Court had power under Part 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) to set aside orders made on 27 November 2017 in the defendant's absence." 'Whether the defendant gave an adequate explanation for the non-appearance of himself or his legal representatives at the final hearing.' 'Whether the defendant had an arguable defence or triable issue on the merits.' 'Whether discretionary factors, including delay, finality of litigation, the amount of the judgment and the conduct of the appeal, justified setting aside the judgment.']

Ratio Decidendi

Although the Court had power under Part 36.16(2)(b) because the orders of 27 November 2017 were entered in the defendant's absence, the discretion to set them aside was not exercised. The defendant established only an arguable and triable but not strong defence; there was a significant unexplained gap as to why counsel briefed for the hearing did not attend; there was delay in filing and prosecuting the Notice of Motion, including the choice to pursue an unsuccessful appeal first; and the public interest in finality of judgments outweighed the factors favouring relief, including the size of the judgment and the importance of the matter to the defendant.

Court Disposition

Notice of Motion filed 29 March 2018 dismissed; defendant ordered to pay the plaintiff's costs of the Notice of Motion as agreed or assessed.

Orders

  • ['The Notice of Motion filed 29 March 2018 is dismissed.' "The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed."]