Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Valder v Wolak & Anor [2012] NSWCA 189
• Hearing dates: 8 June 2012
• Decision date: 08 June 2012
• Before: Beazley JA; Tobias AJA

Decision

Notice of motion dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - Summons seeking leave to appeal - Trial judge's order of an interlocutory nature - No error in trial judge's determination or order - Notice of motion dismissed.; PROCEDURE - Notice of motion seeking to set aside order dismissing proceedings on basis of no appearance - Whether Court ought to set aside order - Uniform Civil Procedure Rules 2005, rr 36.15, 36.16
• Legislation Cited: Uniform Civil Procedure Rules 2005
• Category: Principal judgment
• Parties: Valdemar Ian Valder (Applicant); Jozefa Wolak (First Respondent); New South Wales Land and Housing Corporation (Second Respondent)
• Representation: Counsel: In person (Applicant); In person (Barbara Wolak) (First Respondent); S Gardiner (Second Respondent); Solicitors: N/A (Applicant); N/A (First Respondent); Legal Services Branch, New South Wales Land and Housing Corporation (Second Respondent)
• File Number(s): 2012/5574
• Publication restriction: No

Decision under appeal

• Citation: Valder v Wolak & Anor [2012] NSWCA 173
• Date of Decision: 2012-05-25 00:00:00
• Before: Beazley JA; Tobias AJA
• File Number(s): 2012/5574

Judgment

1 THE COURT: On 28 May 2012 the applicant filed a notice of motion in which he sought the following orders:

1.The order of 25 May 2012 dismissing the proceedings on the ground of no appearance, be set aside.

2.The appeal proceedings be allowed and the white folder be reinstated.

3.The order requiring both defendants to file defence.

4.The order requiring the first defendant to file address for service.

5.Reserve the costs.

2 The notice of motion was supported by an affidavit of the applicant made on 28 May 2012. In that affidavit the applicant explained the reason for his non-appearance on 25 May 2012. He referred to certain medical conditions from which he suffers. In addition, he referred to his understanding that the matter had been listed on 25 May 2012 at 2:30 pm, when in fact the Court listing was for 10:45 am.

3 When the matter was listed before the Court on 25 May 2012, the applicant's name was called outside the Court and, as is apparent from what has been said, there was no appearance. The Court gave a judgment in the matter and made an order dismissing the summons for leave to appeal and ordering the applicant to pay the costs of the second respondent on that occasion.

4 In its judgment given on 25 May 2012, the Court gave three reasons for then dismissing the summons seeking leave to appeal. The first was that it was out of time and no extension of time had been sought. The second was due to the non-appearance of the applicant. The third was because the Court had considered the summons and the submissions that had been made by Mr Valder in his summary of argument in support of the summons seeking leave to appeal. The Court had also read the judgment of the trial judge and the transcript. The Court formed an opinion on that occasion that there was, in any event, no arguable case for leave.

5 The applicant has sought to set aside the orders made by the Court on 25 May 2012 pursuant to the Uniform Civil Procedures Rules 2005 (UCPR), Pt 36, rr 36.15 and 36.16. Rule 36.15 permits the Court to set aside an order where it has been made irregularly, illegally or against good faith. In my opinion, nothing has been demonstrated to engage that order. Part 36, r 36.16 provides that the Court may set aside or vary a judgment or order in various circumstances including where an order has been made in the absence of a person. Whilst that occurred on this occasion, the Court had other reasons for dismissing the summons and making an order for costs. However, pursuant to Pt 36, r 36.16(3A), the Court may set aside or vary a judgment or order where a notice of motion for the setting aside or variation is filed within fourteen days after the judgment or order is entered. It is the Court's opinion that it ought to proceed under that rule and determine whether it should set aside the orders it made on 25 May 2012.

6 In making its determination as to whether the Court should set aside its orders made on 25 May 2012, we consider it appropriate to put to one side the fact that the applicant requires an extension of time in which to file his summons. In other words, we propose to consider the question whether the summons for seeking leave to appeal is one in respect of which the Court would grant leave. In order to make a determination in that matter, it is necessary for some background to these proceedings to be stated.

7 The applicant filed a summons in the Supreme Court on 16 December 2011 naming Jozefa Wolak as the first defendant and the Housing Department of New South Wales as the second defendant. He sought the following orders:

"1.Prevent both defendants from changing the door lock.

2.Stop an eviction from the unit pending a legal [action].

3.Reimbursement of the rent paid and expenses incurred ..."

Specific amounts of money are then claimed as well as court costs.

8 The first respondent was a tenant of certain premises which had been leased to her by the second respondent. An arrangement had been made between the first respondent and the applicant for him to occupy the premises. The Court is not presently concerned with the legal status of that arrangement but it did involve an agreement of the applicant to pay moneys for his occupation in an amount, which appears to have been equivalent to the rent that the first respondent was required to pay to the second respondent, pursuant to the terms of the lease. It appears that sub-letting of the premises was not permissible. By 9 December 2011 the second respondent knew of the applicant's occupation or at least it had information that the applicant may have been occupying the premises. On 15 December 2011 the locks of the premises were changed at the instance of the first respondent. Later that evening the applicant arranged for a locksmith to change the locks back and he remained in possession.

9 On 19 December 2011 the applicant filed an amended summons in which he made a money claim only and abandoned the injunctive relief that he had sought in the original summons preventing the respondents from changing the door locks and preventing his eviction from the premises.

10 The amended summons was listed for hearing at 2 pm on 20 December 2011. On that day, the matter came before the Duty Judge, Rothman J. In his judgment of that date, his Honour recorded that the summons sought the repayment of money said to have been paid in error. His Honour noted that at one stage the applicant had been seeking injunctive relief but that that relief was no longer pressed. His Honour noted that there was no application for urgent relief before him. He observed that to the extent there was anything arguable in the summons seeking the return of moneys, that would be dealt with in the fullness of time. His Honour then stated:

"Any interlocutory application, if there be any, is dismissed. The costs of today will be borne by the plaintiff, that is, the plaintiff will pay the second defendant's costs of today."

11 Some further history in the matter is needed at this stage.

12 On 20 December, that is, the same day as the hearing of the matter before Rothman J, the first respondent signed papers whereby she relinquished her tenancy of the premises. The Court has been informed that those papers were received by the tenancy team of the second respondent on 5 January 2012.

13 On 10 January 2012, the applicant left the premises. He did not suggest today that he has any continuing entitlement to occupation. His continuing grievance in the proceedings is in respect of the monies he paid the second respondent for his occupation of the premises and for his removal expenses. Those proceedings have been transferred to the Local Court. The applicant is seeking to have them returned to the Supreme Court and there are proceedings on foot for that purpose. However, this Court is not presently concerned with those proceedings. Indeed, as the proceedings are not even within the Supreme Court at this point, the Court does not have the power to make the orders sought in paragraphs 3 and 4 of the notice of motion.

14 Returning therefore to the question whether this is a matter where leave to appeal should be granted from the orders made by Rothman J on 20 December 2011, the applicant has filed a draft notice of appeal in which he has advanced fourteen proposed grounds of appeal. None of those grounds demonstrate that leave to appeal should be granted. A review of the transcript shows that there was no error in the trial judge's determination. As his Honour noted, there was no injunctive relief sought by the applicant at that time.

15 Even if it might be thought that the applicant was concerned to secure his position so as to ensure that locks would not be changed in the future, or that he would not be evicted, there was no immediate threat requiring the grant of urgent relief. Nor in our opinion had the applicant established before his Honour any basis upon which he was entitled to continue his occupation of the premises. There was therefore no error in the orders that his Honour made including the order for costs. It must be also borne in mind that his Honour's order was of a interlocutory nature and did not determine the substantive rights between the parties. Further there is no continuing need for any such injunctive relief as the applicant is no longer in possession of the premises.

16 In the Court's opinion, this is not a matter in which the Court would grant leave to appeal. It follows that the orders (1), (2) and (5) in the notice of motion are rejected. The formal order that the Court makes is that the notice of motion is dismissed with costs.

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Decision last updated: 21 June 2012