Szanto v Bainton & Ors [2012] NSWSC 60

Szanto v Bainton & Ors [2012] NSWSC 60

The plaintiff's complaints attacked the merits and conduct of Ward J's interlocutory decision rather than showing that the orders were given, entered or made irregularly, illegally or against good faith within Pt 36, r 36.15. Even if the alleged errors or complaints of bias were established, they would be matters for appeal, not for another single judge setting aside the entered orders under r 36.15. The specific attacks on Ward J's reasons, including as to adjournment, security for costs, hearsay, the undertaking, and pleading issues, were not made good.

Jurisdiction
Australia
Judgment Date
30 January 2012
Procedural Posture
Interlocutory Application Under Pt 36, R 36.15 of the Uniform Civil Procedure Rules to Set Aside Orders Made on 25 August 2011 / Equity Division Interlocutory Application
Outcome
Plaintiff's notice of motion dismissed; stay discharged; plaintiff ordered to pay the first and second defendants' costs; time extended for security for costs and amended pleading.
Legal Topics
['setting Aside Judgments or Orders' 'security for Costs' 'strike Out of Statement of Claim' 'procedural Fairness' 'bias or Reasonable Apprehension of Bias' 'costs' 'extension of Time']
['practice and Procedure' 'civil Procedure'] ['setting Aside Judgments or Orders' 'security for Costs' 'strike Out of Statement of Claim' 'procedural Fairness' 'bias or Reasonable Apprehension of Bias' 'costs' 'extension of Time']

Case Brief

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Procedural Posture

Interlocutory Application Under Pt 36, R 36.15 of the Uniform Civil Procedure Rules to Set Aside Orders Made on 25 August 2011 / Equity Division Interlocutory Application

Legal Issues

  1. 1 ['Whether the orders made by Ward J on 25 August 2011 should be set aside under Pt 36, r 36.15 of the Uniform Civil Procedure Rules as having been made irregularly, illegally or against good faith.' "Whether the plaintiff's complaints of procedural unfairness, bias or reasonable apprehension of bias, and alleged errors in Ward J's judgment justified relief under r 36.15." "Whether costs of the plaintiff's notice of motion should be payable forthwith." 'Whether time should be extended for provision of security for costs and filing and service of a further amended statement of claim.']

Ratio Decidendi

The plaintiff's complaints attacked the merits and conduct of Ward J's interlocutory decision rather than showing that the orders were given, entered or made irregularly, illegally or against good faith within Pt 36, r 36.15. Even if the alleged errors or complaints of bias were established, they would be matters for appeal, not for another single judge setting aside the entered orders under r 36.15. The specific attacks on Ward J's reasons, including as to adjournment, security for costs, hearsay, the undertaking, and pleading issues, were not made good.

Court Disposition

Plaintiff's notice of motion dismissed; stay discharged; plaintiff ordered to pay the first and second defendants' costs; time extended for security for costs and amended pleading.

Orders

  • ['The plaintiff\'s notice of motion dated 7 September 2011, filed on 8 September 2011 and entitled "Notice of Motion and Motion to Vacate Judgment of 25 August 2011" be dismissed.' 'The stay of the orders of 25 August 2011 be discharged.' "The plaintiff pay the first and second defendants' costs of the plaintiff's...