Mahmoud v State of New South Wales [2013] NSWSC 1785

Mahmoud v State of New South Wales [2013] NSWSC 1785

The plaintiff's application to set aside the consent orders was misconceived because there was no credible evidence that he was defrauded or deceived, no evidence that the entered judgment materially differed from the accepted offer of compromise, and no allegation that he did not instruct acceptance of the offer. The Court considered the notice of motion otherwise wholly without merit, but reserved a confined question concerning the possible application of Civil Procedure Act 2005 s 101(3) and/or UCPR 20.26(8) to the plaintiff's interest claim for further argument.

Jurisdiction
Australia
Judgment Date
04 December 2013
Procedural Posture
Interlocutory Applications / Plaintiff's Notice of Motion to Set Aside Consent Orders Made on 17 December 2012 and for Costs and Interest Orders
Outcome
The Court did not finally determine the notice of motion; it directed that the parties be heard on the limited issue concerning Civil Procedure Act 2005 s 101(3) and/or UCPR 20.26(8), and on costs of the application.
Legal Topics
['application to Set Aside Consent Orders' 'ucpr 36.15(1)' 'offers of Compromise' 'ucpr 20.26 and 20.27' 'interest After Judgment' 'civil Procedure Act 2005 S 101' 'costs Assessment' 'indemnity Costs']
['procedure' 'costs'] ['application to Set Aside Consent Orders' 'ucpr 36.15(1)' 'offers of Compromise' 'ucpr 20.26 and 20.27' 'interest After Judgment' 'civil Procedure Act 2005 S 101' 'costs Assessment' 'indemnity Costs']

Case Brief

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Procedural Posture

Interlocutory Applications / Plaintiff's Notice of Motion to Set Aside Consent Orders Made on 17 December 2012 and for Costs and Interest Orders

Legal Issues

  1. 1 ['Whether the consent judgment and orders made on 17 December 2012 should be set aside under UCPR 36.15(1) as entered or made irregularly, illegally or against good faith.' 'Whether the plaintiff had shown credible evidence that he was defrauded or deceived into the settlement or consent orders.' 'Whether UCPR 20.26(8) required payment within 28 days after acceptance of the offer of compromise on 30 November 2012 so as to support a claim for interest.' 'Whether Civil Procedure Act 2005 s 101 precluded interest because the judgment amount was paid within 28 days after the judgment took effect.' 'Whether the plaintiff could recover additional costs for his own time and effort or indemnity costs.']

Ratio Decidendi

The plaintiff's application to set aside the consent orders was misconceived because there was no credible evidence that he was defrauded or deceived, no evidence that the entered judgment materially differed from the accepted offer of compromise, and no allegation that he did not instruct acceptance of the offer. The Court considered the notice of motion otherwise wholly without merit, but reserved a confined question concerning the possible application of Civil Procedure Act 2005 s 101(3) and/or UCPR 20.26(8) to the plaintiff's interest claim for further argument.

Court Disposition

The Court did not finally determine the notice of motion; it directed that the parties be heard on the limited issue concerning Civil Procedure Act 2005 s 101(3) and/or UCPR 20.26(8), and on costs of the application.

Orders

  • ['The parties are to be heard on the limited issue at a time convenient to them and to the Court to be arranged in consultation with the Associate.' "The Court will also hear argument as to the costs of Mr Mahmoud's application."]