Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors [No 2] [2009] NSWCA 387

Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors [No 2] [2009] NSWCA 387

The respondents’ allegations, even taken at their highest, did not confer power on the Court to set aside perfected final orders under UCPR Pt 36.15(1) or s 63(1) of the Civil Procedure Act, because there was no irregularity in the making or entry of the orders, and s 63(1) does not encompass breaches of general statutory duties. Final judgments may only be challenged on appeal or for fraud.

Parties
Appellant: Perpetual Trustees Australia Ltd; 1st Respondent: Heperu Pty Ltd; 2nd Respondent: Kirisi Holdings Pty Limited; 3rd Respondent: Barry Samuel Landa; 4th Respondent: Drymmoyne Administrative Services Pty Ltd
Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Appeal / Post Judgment Interlocutory Motion in the Court of Appeal
Outcome
Notice of motion dismissed; answers to separate questions: 1. No; 2. No; costs reserved; further submissions on costs directed.
Legal Topics
Perfected Final Orders, Irregularity, Re Opening of Judgments, Res Judicata, Overriding Purpose, Power to Set Aside Orders
Civil Procedure Perfected Final Orders Irregularity Re Opening of Judgments Res Judicata Overriding Purpose Power to Set Aside Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Perpetual Trustees Australia Ltd

Appellant

Heperu Pty Ltd

1st Respondent

Kirisi Holdings Pty Limited

2nd Respondent

Barry Samuel Landa

3rd Respondent

Drymmoyne Administrative Services Pty Ltd

4th Respondent

Procedural Posture

Appeal / Post Judgment Interlocutory Motion in the Court of Appeal

Legal Issues

  1. 1 Whether the orders of 23 April 2009 were made irregularly within UCPR Pt 36.15(1)
  2. 2 Whether the notice of motion filed on 20 May 2009 to set aside the orders of 23 April 2009 under UCPR Pt 36.16 was competent in view of the time limit in UCPR Pt 36.16(3A)
  3. 3 Whether s 63(1) of the Civil Procedure Act encompasses the alleged breaches and gives the Court power to set aside perfected final orders

Ratio Decidendi

The respondents’ allegations, even taken at their highest, did not confer power on the Court to set aside perfected final orders under UCPR Pt 36.15(1) or s 63(1) of the Civil Procedure Act, because there was no irregularity in the making or entry of the orders, and s 63(1) does not encompass breaches of general statutory duties. Final judgments may only be challenged on appeal or for fraud.

Court Disposition

Notice of motion dismissed; answers to separate questions: 1. No; 2. No; costs reserved; further submissions on costs directed.

Orders

  • Separate question (1) amended as specified.
  • Separate questions answered: 1. No. 2. No.