Elder & Ors v Cameron & Ors (No 2) [2007] NSWSC 984

Elder & Ors v Cameron & Ors (No 2) [2007] NSWSC 984

Although the orders had not been entered and the discretion under Uniform Civil Procedure Rules 2005, r 36.16(1) was available, and although Ms Crane was treated as having not been heard by accident without fault on her part, she failed to show a proper basis for setting aside the orders. Counsel for a party who appears is not under a duty to put the evidence or case of an opposing party who fails to attend despite notice. In any event, the material relied on by Ms Crane would not have altered the conclusion that her solicitor had authority and that a concluded agreement existed, so sufficient cause under r 36.15(1) was not shown and no reopening was justified.

Jurisdiction
Australia
Judgment Date
04 September 2007
Procedural Posture
Notice of Motion to Set Aside Orders Made on an Application for Specific Performance / After Orders Made on 9 July 2007 and Before Entry of the Judgment or Order
Outcome
Application dismissed with costs.
Legal Topics
['setting Aside Orders' 'orders Not Entered' 'failure to Attend Trial' 'specific Performance' 'solicitor Authority' 'finality of Litigation']
['civil Procedure' 'equity' 'contract Law'] ['setting Aside Orders' 'orders Not Entered' 'failure to Attend Trial' 'specific Performance' 'solicitor Authority' 'finality of Litigation']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Orders Made on an Application for Specific Performance / After Orders Made on 9 July 2007 and Before Entry of the Judgment or Order

Legal Issues

  1. 1 ['Whether the orders should be set aside under Uniform Civil Procedure Rules 2005, r 36.15(1) as having been made irregularly or against good faith.' "Whether counsel for the plaintiffs had a duty to put the absent second defendant's case to the court." 'Whether the court should exercise its discretion under Uniform Civil Procedure Rules 2005, r 36.16(1) to set aside orders that had not been entered.' 'Whether Ms Crane had shown that by accident without fault on her part she had not been heard.' 'Whether the material relied on by Ms Crane would have altered the orders made on 9 July 2007.']

Ratio Decidendi

Although the orders had not been entered and the discretion under Uniform Civil Procedure Rules 2005, r 36.16(1) was available, and although Ms Crane was treated as having not been heard by accident without fault on her part, she failed to show a proper basis for setting aside the orders. Counsel for a party who appears is not under a duty to put the evidence or case of an opposing party who fails to attend despite notice. In any event, the material relied on by Ms Crane would not have altered the conclusion that her solicitor had authority and that a concluded agreement existed, so sufficient cause under r 36.15(1) was not shown and no reopening was justified.

Court Disposition

Application dismissed with costs.

Orders

  • ["Ms Crane's notice of motion is dismissed." "Ms Crane is ordered to pay the respondents' costs."]