Oberlechner v Herring Enterprises Pty Ltd [2008] NSWSC 364

Oberlechner v Herring Enterprises Pty Ltd [2008] NSWSC 364

The plaintiff gave evidence, corroborated by his wife, that he did not receive correspondence notifying him of the hearings, and the contrary submission assumed receipt that was not established on the evidence. Balancing finality against the plaintiff's opportunity to be heard, the court was not satisfied that the plaintiff had been accorded justice and set aside the two orders.

Jurisdiction
Australia
Judgment Date
21 April 2008
Procedural Posture
Application to Set Aside Orders or Judgments / Ex Tempore Judgment
Outcome
Orders set aside; plaintiff to pay defendant's costs thrown away by the setting aside; no order for the costs of today's proceedings.
Legal Topics
['setting Aside Orders' 'judgment or Order Made in Absence of a Party' 'cross Claim' 'costs']
['civil Procedure'] ['setting Aside Orders' 'judgment or Order Made in Absence of a Party' 'cross Claim' 'costs']

Case Brief

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Procedural Posture

Application to Set Aside Orders or Judgments / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether orders dismissing the plaintiff's summons and giving judgment on the cross-claim should be set aside where they were made in the plaintiff's absence." 'Whether the plaintiff had the opportunity to put his side of the argument in circumstances where he swore that he did not receive correspondence notifying him of the hearings.']

Ratio Decidendi

The plaintiff gave evidence, corroborated by his wife, that he did not receive correspondence notifying him of the hearings, and the contrary submission assumed receipt that was not established on the evidence. Balancing finality against the plaintiff's opportunity to be heard, the court was not satisfied that the plaintiff had been accorded justice and set aside the two orders.

Court Disposition

Orders set aside; plaintiff to pay defendant's costs thrown away by the setting aside; no order for the costs of today's proceedings.

Orders

  • ['The two orders are set aside.' "The plaintiff is to pay the defendant's costs thrown away by the setting aside of the two judgments." "No order is made for the costs of today's proceedings."]