THE NOMINAL DEFENDANT v DICKSON [1989] NSWCA 155

THE NOMINAL DEFENDANT v DICKSON [1989] NSWCA 155

Where an appeal challenges a judgment on grounds of fraud, the proper procedure is to remit the proceedings to the Equity Division for trial, rather than to try contested issues of fact, especially fraud, in the Court of Appeal.

Parties
Appellant: The Nominal Defendant; Respondent: Dickson
Jurisdiction
Australia
Judgment Date
06 February 1989
Procedural Posture
Appeal / Remitter Motion in Court of Appeal
Outcome
Proceedings remitted to Equity Division; costs of motion to be paid by claimant.
Legal Topics
Remitter, Allegation of Fraud, Setting Aside Judgment
Practice and Procedure Remitter Allegation of Fraud Setting Aside Judgment

Case Brief

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Parties

The Nominal Defendant

Appellant

Dickson

Respondent

Procedural Posture

Appeal / Remitter Motion in Court of Appeal

Legal Issues

  1. 1 Whether proceedings should be remitted to the Equity Division for trial of an allegation that judgment was procured by fraud

Ratio Decidendi

Where an appeal challenges a judgment on grounds of fraud, the proper procedure is to remit the proceedings to the Equity Division for trial, rather than to try contested issues of fact, especially fraud, in the Court of Appeal.

Court Disposition

Proceedings remitted to Equity Division; costs of motion to be paid by claimant.

Orders

  • Proceedings remitted to the Equity Division for trial in that Division.
  • Affidavits filed in the Court of Appeal transferred to the Equity Division.