Singh v Ginelle Pty Ltd

[2010] NSWCA 310

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside judgment
4. › Consent judgment
5. › Whether judgment entered by consent and in absence of party governed by principles for consent judgments or absence judgments
6. › Harvey v Phillips [1956] HCA 27
7. › UCPR r 36.16(2)
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside consent judgment
4. › Grounds required
5. › Whether court has free-ranging discretion to set aside in interests of justice
6. › Whether grounds must suffice to render simple contract void or voidable
1. Practice and Procedure
2. › Abuse of process
3. › Successive applications for same relief
4. › Whether second application to different first instance judge for same relief on improved evidence is abuse of process
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside judgment
4. › Burden of proof
5. › Whether party seeking to overturn first instance judgment bears onus of establishing sufficient reason

Quick Take

Where a judgment has been entered both by consent and in the absence of a party, an application to set it aside must satisfy the [name withheld] v [name withheld] test (grounds vitiating a simple contract), not the more liberal test for judgments given in absence. A party who has had an application for final relief heard and rejected cannot bring a second application to a different first instance judge for the same relief on the basis of improved evidence — this constitutes an abuse of process. The burden of proof lies on the party seeking to set aside the judgment.