Rashid v Smar Pty Ltd [2013] NSWSC 1712

Rashid v Smar Pty Ltd [2013] NSWSC 1712

The magistrate at the second hearing erred in law by concluding, on the materials before the court, that there was no triable issue to defend the claim, justifying the dismissal of Mr Rashid's application to set aside the default judgment. The application did, in fact, raise a triable issue as to the nature of the transaction and any monies owing, and this required remittal to the Local Court for determination.

Parties
Plaintiff: Harunur Rashid; Defendant: Smar Pty Ltd
Jurisdiction
Australia
Judgment Date
18 November 2013
Procedural Posture
Judicial Review/appeal / Supreme Court Appeal From Local Court; Judgment on Appeal and Leave Application
Outcome
Appeal dismissed in part, allowed in part; matter remitted to Local Court for rehearing of notice of motion to set aside default judgment; costs orders made.
Legal Topics
Appeal From Local Court, Leave to Appeal Interlocutory Order, Procedural Fairness, Default Judgment, Natural Justice, Triable Issue, Costs
Civil Procedure Appeal From Local Court Leave to Appeal Interlocutory Order Procedural Fairness Default Judgment Natural Justice Triable Issue Costs

Case Brief

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Parties

Harunur Rashid

Plaintiff

Smar Pty Ltd

Defendant

Procedural Posture

Judicial Review/appeal / Supreme Court Appeal From Local Court; Judgment on Appeal and Leave Application

Legal Issues

  1. 1 Whether the Local Court erred in entering default judgment in the absence of plaintiff
  2. 2 Whether the plaintiff was denied procedural fairness at the setting aside hearing
  3. 3 Whether the magistrate correctly concluded that there was no triable issue in the plaintiff's materials

Ratio Decidendi

The magistrate at the second hearing erred in law by concluding, on the materials before the court, that there was no triable issue to defend the claim, justifying the dismissal of Mr Rashid's application to set aside the default judgment. The application did, in fact, raise a triable issue as to the nature of the transaction and any monies owing, and this required remittal to the Local Court for determination.

Court Disposition

Appeal dismissed in part, allowed in part; matter remitted to Local Court for rehearing of notice of motion to set aside default judgment; costs orders made.

Orders

  • The appeal from the judgment of the Local Court dated 6 March 2013 is dismissed.
  • Leave to appeal is granted from the Local Court's judgment of 11 April 2013 dismissing the plaintiff's notice of motion.