Hammond v Gerard Malouf & Partners [2012] NSWSC 664

Hammond v Gerard Malouf & Partners [2012] NSWSC 664

UCPR 10.9 does not apply where a business is conducted under the name of the person conducting the business. The originating process was not properly served on the second defendant. In circumstances where the defendant has an arguable case and has not been validly served, the judgment should be set aside and the matter determined on the merits.

Parties
Second Plaintiff: Tracie Hammond; Second Defendant: Mark Thompson
Jurisdiction
Australia
Judgment Date
19 June 2012
Procedural Posture
Interlocutory Application / Application to Set Aside Default Judgment
Outcome
Judgment and assessment set aside. Proceedings to continue with proper service and defence.
Legal Topics
Service of Originating Process, Service Under UCPR 10.9, Default Judgment, Personal Service, Professional Negligence
Common Law Professional Negligence Service of Originating Process Service Under UCPR 10.9 Default Judgment Personal Service

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 5 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Tracie Hammond

Second Plaintiff

Mark Thompson

Second Defendant

Procedural Posture

Interlocutory Application / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether default judgment should be set aside due to invalid service
  2. 2 Whether service under UCPR 10.9 was applicable to proceedings against a barrister practising under his own name
  3. 3 Whether court should exercise discretion to set aside default judgment in absence of valid service

Ratio Decidendi

UCPR 10.9 does not apply where a business is conducted under the name of the person conducting the business. The originating process was not properly served on the second defendant. In circumstances where the defendant has an arguable case and has not been validly served, the judgment should be set aside and the matter determined on the merits.

Court Disposition

Judgment and assessment set aside. Proceedings to continue with proper service and defence.

Orders

  • The judgment dated 20 July 2011 and assessment dated 22 February 2012 are set aside.
  • Time for service of statement of claim, amended statement of claim, and further amended statement of claim extended to 4.00 pm on 17 July 2012.