In the matter of Greenhills Securities Pty Limited [2015] NSWSC 2021

In the matter of Greenhills Securities Pty Limited [2015] NSWSC 2021

The alleged forgery of Mr Dixon's signature on the statutory declaration did not establish that Ball J's order was obtained by fraud because the statutory declaration was not deployed in the proceedings before Ball J and did not prove that Mr Unicomb's evidence about the trusteeship was false. The further evidence, particularly the caveat, could and should have been adduced at the original hearing, no adequate explanation was given for the failure to tender it, and admitting it would require a general reopening including cross-examination. The discretion under UCPR r 36.16 was therefore not enlivened in Loire's favour despite the possibility that the evidence might have produced a...

Jurisdiction
Australia
Judgment Date
17 March 2015
Procedural Posture
Interlocutory Process Seeking to Set Aside Orders Concerning Creditors' Statutory Demands Under UCPR R 36.15 and R 36.16, Alternatively to Reopen After Judgment to Adduce Further Evidence / After Judgment and Entry of Orders; Application Filed Within 14 Days After Orders Were Entered
Outcome
Interlocutory process dismissed with costs.
Legal Topics
['setting Aside Orders' 'fraud' 'fresh Evidence' 'reopening After Judgment' "creditors' Statutory Demands" 'genuine Dispute' 'ucpr R 36.15' 'ucpr R 36.16' 'finality of Litigation']
['practice and Procedure' 'equity'] ['setting Aside Orders' 'fraud' 'fresh Evidence' 'reopening After Judgment' "creditors' Statutory Demands" 'genuine Dispute' 'ucpr R 36.15' 'ucpr R 36.16' 'finality of Litigation']

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Procedural Posture

Interlocutory Process Seeking to Set Aside Orders Concerning Creditors' Statutory Demands Under UCPR R 36.15 and R 36.16, Alternatively to Reopen After Judgment to Adduce Further Evidence / After Judgment and Entry of Orders; Application Filed Within 14 Days After Orders Were Entered

Legal Issues

  1. 1 ["Whether order 2 made by Ball J setting aside Loire Consultants Pty Limited's statutory demand should be set aside on the basis that it was obtained by fraud." 'Whether the application to set aside the order for fraud had to be brought in separate proceedings.' 'Whether the Court should exercise its discretion under UCPR r 36.16 to set aside or vary the order in order to permit fresh evidence and a reopening after judgment.' 'Whether the material relied upon by Loire could and should have been adduced at the original hearing.']

Ratio Decidendi

The alleged forgery of Mr Dixon's signature on the statutory declaration did not establish that Ball J's order was obtained by fraud because the statutory declaration was not deployed in the proceedings before Ball J and did not prove that Mr Unicomb's evidence about the trusteeship was false. The further evidence, particularly the caveat, could and should have been adduced at the original hearing, no adequate explanation was given for the failure to tender it, and admitting it would require a general reopening including cross-examination. The discretion under UCPR r 36.16 was therefore not enlivened in Loire's favour despite the possibility that the evidence might have produced a...

Court Disposition

Interlocutory process dismissed with costs.

Orders

  • ['The interlocutory process filed 13 February 2015 as subsequently amended be dismissed with costs.']