Singh v Ginelle Pty Ltd [2010] NSWCA 310

Singh v Ginelle Pty Ltd [2010] NSWCA 310

Leave to appeal from Latham J was granted because the proposed appeal involved legal questions, but the appeal was dismissed because the 1 December 2009 judgment was entered in accordance with the Singhs' consent and there was no evidence before Latham J establishing any ground that would justify setting aside the agreement or consent judgment, including under the Consumer Credit Code or on alleged unconscionability. Leave to appeal from Palmer J was refused because the later application sought in substance the same final relief already rejected by Latham J and was therefore an abuse of process; the stay application was parasitic on the failed challenge to the 9 June 2009 agreement.

Jurisdiction
Australia
Judgment Date
19 November 2010
Procedural Posture
Applications for Leave to Appeal From Decisions of Single Judges of the Supreme Court of NSW Concerning Possession Proceedings and Related Relief / Court of Appeal Judgment on Joint Hearing of Two Applications for Leave to Appeal
Outcome
Leave to appeal from Latham J granted but appeal dismissed with costs; application for leave to appeal from Palmer J dismissed with costs.
Legal Topics
['setting Aside Consent Judgment' 'judgment Entered in Absence of a Party' 'uniform Civil Procedure Rules 2005 R 36.16(2)' 'consumer Credit Code Business Purpose Declaration' 'unconscionable or Asset Based Lending Allegations' 'burden of Proof on Party Seeking to Overturn Judgment' 'independent Proceedings to Challenge Consent Orders' 'abuse of Process by Repeated Application for Final Relief']
['civil Procedure' 'mortgage Law' 'consumer Credit' 'equity' 'abuse of Process' 'evidence'] ['setting Aside Consent Judgment' 'judgment Entered in Absence of a Party' 'uniform Civil Procedure Rules 2005 R 36.16(2)' 'consumer Credit Code Business Purpose Declaration' 'unconscionable or Asset Based Lending Allegations' 'burden of Proof on Party Seeking to Overturn Judgment' 'independent Proceedings to Challenge Consent Orders' 'abuse of Process by Repeated Application for Final Relief']

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Procedural Posture

Applications for Leave to Appeal From Decisions of Single Judges of the Supreme Court of NSW Concerning Possession Proceedings and Related Relief / Court of Appeal Judgment on Joint Hearing of Two Applications for Leave to Appeal

Legal Issues

  1. 1 ['Whether a judgment entered by consent but in the absence of the Singhs should be set aside under principles applicable to consent judgments or under principles applicable to judgments entered in the absence of a party.' 'Whether the Singhs adduced evidence before Latham J sufficient to justify setting aside the 9 June 2009 agreement, the 1 December 2009 judgment, or staying the writ of possession.' 'Whether alleged non-compliance with the Consumer Credit Code or alleged unconscionability provided a basis to set aside the judgment or agreement.' 'Whether the later application before Palmer J seeking substantially the same relief was an abuse of process.']

Ratio Decidendi

Leave to appeal from Latham J was granted because the proposed appeal involved legal questions, but the appeal was dismissed because the 1 December 2009 judgment was entered in accordance with the Singhs' consent and there was no evidence before Latham J establishing any ground that would justify setting aside the agreement or consent judgment, including under the Consumer Credit Code or on alleged unconscionability. Leave to appeal from Palmer J was refused because the later application sought in substance the same final relief already rejected by Latham J and was therefore an abuse of process; the stay application was parasitic on the failed challenge to the 9 June 2009 agreement.

Court Disposition

Leave to appeal from Latham J granted but appeal dismissed with costs; application for leave to appeal from Palmer J dismissed with costs.

Orders

  • ['Grant leave to appeal from the decision of Latham J on 9 March 2010 in proceedings 292530 of 2009 in the Common Law Division of the Supreme Court of NSW but dismiss the appeal with costs.' 'Application for leave to appeal from the decision of Palmer J given on 5 May 2010 in proceedings 113436 of 2010 in the Equity...