Australia, Sept. 1 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 1:

1. THE COURT: By summons filed on 28 April 2025 Peter and Helen Petrou (the applicants) seek leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW) against orders dated 19 February 2025 of Lindsay J (19 February 2025 orders) setting aside earlier orders his Honour had made on 18 November 2024 (18 November 2024 orders). The 18 November 2024 orders were made following a hearing at which the respondent, then the first defendant, failed to appear. The 18 November 2024 orders in substance constituted judgment in favour of the plaintiffs, albeit his Honour expressly reserved liberty to the first defendant to apply for the orders to be discharged or varied. The 19 February 2025 orders setting aside the earlier orders were made on condition that the respondent pay $120,000 into Court (on account of costs thrown away by the hearing having to be re-run and for the costs of the application to set aside the earlier orders on or before 21 March 2025). His Honour also ordered that the parties were not entitled to rely at the hearing of the matter on any evidence not already served, save with the leave of the Court.

2. The applicants' contention, as set out in a draft notice of appeal, is that his Honour erred in failing "to find that the setting aside of the judgment was not in the interests of the proper administration of justice". They say this is so for three reasons:

1) his Honour failed to take into account the material considerations of the non-financial prejudice to them;

2) his Honour wrongly took into account medical evidence, contrary to AHB v NSW Trustee and Guardian [2014] NSWCA 40, or otherwise gave that evidence inappropriate weight; and

3) his Honour applied the wrong test, being what "is the interest of the parties in the administration of justice" rather than "what is in the interests of the administration of justice" and in so doing failed to take into account the finality principle and in particular the general public's interest in finality.

3. The discretionary power exercised by Lindsay J to set aside his earlier orders is found in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(2)(b). That rule provides that the court may set aside or vary a judgment or order after it has been entered if it has been "given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order". The rule does not specify how the discretion it confers ought to be exercised or expressly identify matters to be taken into account. As Leeming JA observed in Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [2] (relying upon Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 at [5] (Gaudron ACJ, McHugh, Hayne and Callinan JJ)), the meaning of the rule "depends on a background of concepts, principles, practices and circumstances that the drafters took for granted or understood, without conscious advertence, by reason of their common language or culture". His Honour proceeded to explain in Pham v Gall at [43], [55]-[56], [102] that the discretion is encapsulated by the question whether there was "a real likelihood that it would be unjust to the defendant to allow the judgment to stand", as held by Jordan CJ in Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239. This involves at least consideration of whether any useful purpose would be served by setting aside the judgment and how it came about that the applicant found himself bound by a judgment regularly obtained (see also Payne JA in Pham v Gall at [92]-[102], McCallum JA agreeing).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1985eb518de897a6cab108cf)

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