Hilton v Gidley [2016] NSWSC 594

Hilton v Gidley [2016] NSWSC 594

Mr Bickel had no standing to pursue the motion to set aside judgment, as any proprietary or related action had vested in his trustee upon bankruptcy and was not revested on discharge, nor was leave or assignment granted; even if standing existed, his actions and awareness at all relevant times, absence of disability, and refusal to take available legal advice meant there was no sufficient irregularity, illegality or lack of good faith in how judgment was obtained, nor an arguable defence to justify exercise of discretion to set aside the orders.

Parties
Plaintiff: Norman Anthony Hilton; First Defendant: Isobelle Gidley; Second Defendant: Richard John Shears; Third Defendant: Daniel John Bickel; Fourth Defendant: Cynthia Frances Berkemeier
Jurisdiction
Australia
Judgment Date
12 May 2016
Procedural Posture
Notice of Motion / Ruling on Amended Motion of Third Defendant to Set Aside Judgment; Dismissal of Application
Outcome
Motion dismissed; costs in favour of plaintiff as agreed or assessed.
Legal Topics
Standing in Bankruptcy, Setting Aside Default Judgments, Guarantee—improvident Transaction, Unconscionable Conduct, Contracts Review Act Application
Civil Procedure Bankruptcy Equity Contracts Standing in Bankruptcy Setting Aside Default Judgments Guarantee—improvident Transaction Unconscionable Conduct +1 more

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Parties

Norman Anthony Hilton

Plaintiff

Isobelle Gidley

First Defendant

Richard John Shears

Second Defendant

Daniel John Bickel

Third Defendant

Cynthia Frances Berkemeier

Fourth Defendant

Procedural Posture

Notice of Motion / Ruling on Amended Motion of Third Defendant to Set Aside Judgment; Dismissal of Application

Legal Issues

  1. 1 Whether Mr Bickel has standing to pursue motion after bankruptcy discharge
  2. 2 Whether judgments against Mr Bickel were entered irregularly, illegally or against good faith
  3. 3 Whether Mr Bickel has an arguable defence under Contracts Review Act or for unconscionability

Ratio Decidendi

Mr Bickel had no standing to pursue the motion to set aside judgment, as any proprietary or related action had vested in his trustee upon bankruptcy and was not revested on discharge, nor was leave or assignment granted; even if standing existed, his actions and awareness at all relevant times, absence of disability, and refusal to take available legal advice meant there was no sufficient irregularity, illegality or lack of good faith in how judgment was obtained, nor an arguable defence to justify exercise of discretion to set aside the orders.

Court Disposition

Motion dismissed; costs in favour of plaintiff as agreed or assessed.

Orders

  • Motion is dismissed with an order for costs as agreed or assessed in favour of Mr Hilton.