HASTIE v NIXON [1991] NSWCA 297

HASTIE v NIXON [1991] NSWCA 297

The District Court judge erred in law by failing to consider all material available on the application to set aside summary judgment, specifically disregarding relevant new evidence of a potential bona fide defence as required by law. The order refusing to set aside the judgment must be quashed.

Parties
Second Defendant / Applicant: RM Hastie; Plaintiff / Respondent: W Nixon; First Defendant: G Benecke
Jurisdiction
Australia
Judgment Date
09 October 1991
Procedural Posture
Appeal From District Court (summary Judgment Proceedings) / Judgment on Application to Quash District Court Order Refusing to Set Aside Summary Judgment
Outcome
Order of District Court refusing to set aside summary judgment quashed; costs awarded to applicant; liberty to apply.
Legal Topics
Summary Judgment, Setting Aside Judgment, District Court Rules, Bona Fide Defence
Civil Procedure Summary Judgment Setting Aside Judgment District Court Rules Bona Fide Defence

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 2 Authorities cited 10 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

RM Hastie

Second Defendant / Applicant

W Nixon

Plaintiff / Respondent

G Benecke

First Defendant

Procedural Posture

Appeal From District Court (summary Judgment Proceedings) / Judgment on Application to Quash District Court Order Refusing to Set Aside Summary Judgment

Legal Issues

  1. 1 Whether the District Court judge erred in refusing to consider new evidentiary material on application to set aside summary judgment under Pt11A r2(3) District Court Rules
  2. 2 Proper construction of 'sufficient cause being shown' for setting aside summary judgment under Pt11A r2(3)

Ratio Decidendi

The District Court judge erred in law by failing to consider all material available on the application to set aside summary judgment, specifically disregarding relevant new evidence of a potential bona fide defence as required by law. The order refusing to set aside the judgment must be quashed.

Court Disposition

Order of District Court refusing to set aside summary judgment quashed; costs awarded to applicant; liberty to apply.

Orders

  • Order of Shillington DCJ of 2 November 1990 refusing to make O.3 in the defendants' notice of motion of 28 August 1990 quashed.
  • Order of same date that second defendant pay plaintiff's costs of the notice of motion quashed.