Batiste v Gilmour-Latham [2001] NSWCA 392

Batiste v Gilmour-Latham [2001] NSWCA 392

The Court held that Cooper DCJ was entitled to impose and maintain a condition requiring $100,000 security when setting aside the judgment. The discretion to set aside judgment on terms was not limited to compensating proven prejudice, and a security condition could be justified where there were doubts about the bona fides of the defence. The appellant did not provide satisfactory evidence that compliance with the condition was impossible, and the amount was not shown to be wholly excessive. Any procedural fairness issue from the 1 June 2001 hearing was addressed by the opportunity to contest the term on 21 June 2001.

Jurisdiction
Australia
Judgment Date
31 October 2001
Procedural Posture
Application for Leave to Appeal From District Court Decisions Concerning Setting Aside a Judgment on Terms / New South Wales Court of Appeal; Application Heard as If an Appeal
Outcome
Leave to appeal refused in relation to the order of Bowden ADCJ; leave to appeal granted in relation to the orders of Cooper DCJ, but the appeal dismissed.
Legal Topics
['setting Aside Judgment on Terms' 'security for Amount Claimed' 'default Judgment' 'exercise of Discretion' 'procedural Fairness']
['civil Procedure' 'appellate Procedure'] ['setting Aside Judgment on Terms' 'security for Amount Claimed' 'default Judgment' 'exercise of Discretion' 'procedural Fairness']

Case Brief

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Procedural Posture

Application for Leave to Appeal From District Court Decisions Concerning Setting Aside a Judgment on Terms / New South Wales Court of Appeal; Application Heard as If an Appeal

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from Bowden ADCJ's refusal to set aside the judgment and from Cooper DCJ's orders setting aside the judgment only on terms." 'Whether a court setting aside a judgment on terms may require the defendant to provide security for some or all of the amount claimed.' 'Whether the term requiring security of $100,000 was inappropriate because the appellant said it was impossible to comply.' 'Whether any denial of procedural fairness on 1 June 2001 was cured by the later hearing on 21 June 2001.']

Ratio Decidendi

The Court held that Cooper DCJ was entitled to impose and maintain a condition requiring $100,000 security when setting aside the judgment. The discretion to set aside judgment on terms was not limited to compensating proven prejudice, and a security condition could be justified where there were doubts about the bona fides of the defence. The appellant did not provide satisfactory evidence that compliance with the condition was impossible, and the amount was not shown to be wholly excessive. Any procedural fairness issue from the 1 June 2001 hearing was addressed by the opportunity to contest the term on 21 June 2001.

Court Disposition

Leave to appeal refused in relation to the order of Bowden ADCJ; leave to appeal granted in relation to the orders of Cooper DCJ, but the appeal dismissed.

Orders

  • ["The claimant pays the respondent's costs of the application." 'Time for provision of security extended to 5 December 2001.' 'Time for filing a defence to the further amended statement of liquidated claim extended to 12 December 2001.' 'The orders do not preclude the District Court from granting further time if...