LLB300 Chapter Notes - Chapter 15: Inherent Jurisdiction, Australia Act 1986, Lend Lease Group
Chapter 15 – Concluding Proceedings:
Introduction – 15.10:
oWays that proceedings may be concluded prior to trial
Most do not go to trial
UCPR provides many incentives to settle
Offers of compromise – Calderbank letters
oProceedings do not conclude until all avenues for appeal are exhausted
oAfter conclusion, whether summarily or trial, it may be necessary to take steps to
enforce it
Summary Disposal – 15.20:
Application to the court that may result in conclusion before trial
Provided for in the UCPR
May be the result of applications to strike out – r 14.28:
Pleadings that do not disclose a reasonable cause of action or defence
If it has a tendency to cause prejudice, embarrassment or delay
Abuse of the court’s process
Applications in this chapter:
Default judgement;
Summary judgement;
Summary dismissal;
Want of prosecution
oDefault Judgement:
Applies to proceedings commenced by a Statement of Claim – UCPR r 16.1
oJudgement entered by virtue of court rules rather than one ordered by
court
May be entered if the defendant is in ‘default’ – r 16.2
Provides an incentive for defendants to file an appearance or a defence
within 28 days (r 14.3)
oFiling an appearance or defence – indication that the claim will be
defended
UCPR r 16.2 – provides for default judgements where:
oD has failed to file a defence or an appearance
oD has failed to file any affidavits
oD has filed a defence that has been struck out
Procedure depends on whether the claim is liquidated or unliquidated
oLiquidated – amount claimed is known or can be determined
Application for default judgement made pursuant to r 16.6
Requires a supporting affidavit
Must include the originating process – r 16.3
oUnliquidated – amount claimed is unknown and must be determined by
a court
Usually case managed and directions made pursuant to s 57 of
CPA which requires consideration of s 56
Where D is in default – r 16.7
oNot appropriate without leave from the court
Effect of default judgement is the same as after a trial
oEnforcement process may need to be invoked
find more resources at oneclass.com
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oNo appeal, except for by application for the default judgement to be set
aside
oSetting Aside a Default Judgement:
UCPR r 36.16(2)(a) and (b) – provide the court with power to set aside
default judgements
oD must explain delay in filing and show there is a defence with merit
Dunwoodie v Teachers Mutual Bank Ltd [2014] NSW Court of Appeal:
Facts:
oOpened a bank account with Teachers Mutual Bank (TMB) by
depositing $50 and obtaining a cheque book
oTMB had a policy allowing cheques to be cashed without clearance or
enquiry
oDunwoodie cashed a cheque for $60,000 & did not repay it
oTMB filed a Notice of Motion seeking default judgement in the amount
of $66,014.87 (including interest and fees) on 5 November 2010
oDefault judgement was entered on the same day
oDunwoodie filed a Notice of Motion on 16 November 2012 seeking to
have the default judgement set aside
Dunwoodie alleged he was acting under duress from members of
the Hells Angels bikie gang
Sought to rely on the draft defence based on fraud, duress and
the Contracts Review Act
oDistrict Court refused to set aside the judgement and Dunwoodie
sought leave to appeal
Issue – ‘In the final analysis, it is necessary to consider whether it is in the
interests of justice to allow the party seeking to set aside a default
judgement to be permitted to defend the proceedings on the merits…’
Finding:
o‘must be satisfied that the defence is “fairly arguable in law or fact” and
that the applicant is bona fide in seeking to rely upon that defence…’
Fraud and duress set aside – ‘In my view the appellant’s proposed
fraud and duress defences are not fairly arguable in law.’
oContracts Review Act – ‘It is not, in my view, arguable that the Policy
generated an obvious risk of fraud or exposed the respondent’s
members to “predation by third parties” so that it could be
characterised as unjust within the meaning of s 7 of the CRA.’
o‘delay should not result in this court declining to require the trial
court to consider the merits of the application to set aside the
summary judgement, subject to any discretionary considerations
raised before it.’
Under duress of his own psychological condition
No prejudice to the bank
oLeave granted to appeal
oSummary Judgement:
UCPR r 13.1 – allows P to seek summary judgement against a D who has
failed to file a defence revealing a valid defence, or whose defence is only
in regard to the amount owed
oCan relate to the whole or part of judgement
oMust be supported by an affidavit – r 35.3
Regarded as evidence in chief unless otherwise ordered – r 31.2
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Introduction 15. 10: ways that proceedings may be concluded prior to trial. Offers of compromise calderbank letters: proceedings do not conclude until all avenues for appeal are exhausted, after conclusion, whether summarily or trial, it may be necessary to take steps to enforce it. Application to the court that may result in conclusion before trial. May be the result of applications to strike out r 14. 28: Pleadings that do not disclose a reasonable cause of action or defence. If it has a tendency to cause prejudice, embarrassment or delay. Applies to proceedings commenced by a statement of claim ucpr r 16. 1: judgement entered by virtue of court rules rather than one ordered by court. May be entered if the defendant is in default" r 16. 2. Provides an incentive for defendants to file an appearance or a defence within 28 days (r 14. 3: filing an appearance or defence indication that the claim will be defended.
