Australian Lending and Finance Pty Ltd v D & D Properties Australia as trustee for the D & D Property Trust

Determination

As is apparent from the above, the first issue that arises on the present application is one of power, namely, whether, if the effect of non-compliance by the defendants with the self-executing orders (made with the defendants' consent) in July this year is that the proceeding is at an end (or, in the words of Menzies J in Marinoff, has been regularly concluded), there is power to exercise a discretion after the event to extend time for the filing of evidence (so as in effect, retrospectively, to bring about a situation where the self-executing order has not been triggered).
There is no dispute as to the fact that there was a failure to comply with the orders made in relation to the filing of the defendants' evidence by 2 August 2021; nor that this had the effect, pursuant to the consent self-executing orders, that "orders be made on 3 August 2021" in accordance with prayers 1 to 7 of the plaintiff's notice of motion.
Turning first to the reliance placed by the plaintiff on Marinoff (which in turn refers to Goodwin), as noted by Wilson J in FAI, Marinoff involved consideration of the powers of an appellate court, not of a judge at first instance (as noted by Wilson J in FAI at 283); and of the power to extend time with regard to an order that a proceeding "stand dismissed", rather than entry of default judgment as such.
The plaintiff, as noted above, has pointed to the decision of the Queensland Court of Appeal in Mango Boulevard (at [97]), to the effect that "a self-executing order may give rise to a judgment upon satisfaction of expressed conditions without any further judicial act". As I understand it, the plaintiff's principal contention is that the consequence of non-compliance with Order 1 of the July Orders was automatically to give rise to default judgment against the defendants on 3 August 2021, without the need for any further judicial act (and hence that all that is now required is to "formalise" that position).
However, in Marinoff, the High Court was considering the scope of the Court's inherent jurisdiction (see Barwick CJ at 530; Menzies J at 531-532). Walsh J (at 537), making reference to Goodwin, said that case stood as "direct authority for the proposition that there is no inherent power to vary an order by which an appeal stands dismissed in a case… [where] the order was formally drawn up and entered before any application to vary it was made" (noting that no question there arose as to the power of the Court to vary an order of that kind if the order, although it was or had become an unconditional order for the dismissal of an appeal, had not yet been taken out).
In FAI, the plurality (Wilson, Deane, Brennan and Dawson JJ, and Gaudron J in a separate judgment), distinguished Marinoff by drawing a distinction between the Court's inherent power and the application of the Supreme Court Rules, specifically Pt 2, r 3 and Pt 40, r 9 (later repealed but replicated in similar form in the UCPR (rr 1.12 and 36.16, respectively); see National Australia Bank Ltd v Viziteu [2017] NSWSC 1125 at [8]).
Gaudron J in FAI (at 289) emphasised the fact that in Marinoff the High Court was considering an order made in the exercise of the Court's inherent jurisdiction (rather than an order made under a specific statutory power under statute or instrument permitting the extension of the time fixed for a particular action); and hence that the decisions in Goodwin and Marinoff had no necessary bearing on the proper interpretation of the relevant Supreme Court Rule under consideration in the decision then before the Court (Pt 2, r 3).
The relevant rule in the Supreme Court Rules 1970 (Pt 2, r 3), which was in force at the time of FAI, provided as follows: Extension and abridgment (1) The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order. (2) The Court may extend time under subrule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires. (3) The period within which a person is required by rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension.
By comparison, r 1.12 of the UCPR provides: Extension and abridgment of time (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.
The Supreme Court Rules (at Pt 40, r 9 - now repealed) stated: Setting aside or varying judgment or order (1) The Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment. (2) The Court may set aside or vary a judgment: (a) where the judgment has been entered pursuant to Part 17 (which relates to default judgment), or (b) where the judgment has been entered after judgment has been given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the judgment, (c) where the judgment has been entered in proceedings for possession of land after judgment has been given in the absence of a person and the Court decides to make an order that the person be added as a defendant. (3) The Court may, on terms, set aside or vary an order: (a) where the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order, or (b) where notice of motion for the setting aside or variation is filed before entry of the order. (4) In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief. (5) Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order.
The equivalent rule under the UCPR (r 36.16) provides: Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if - (a) it is a default judgment (other than a default judgment given in open court), or (b) 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, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it - (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
In FAI, their Honours did not comment on the proposition in Marinoff that, once a court order has been entered, such a perfected order is beyond recall (except on appeal) and hence the court's inherent power does not permit interference with such an order. Instead, as noted above, the Court drew a distinction between any inherent jurisdiction to set aside an order that had been perfected, and a specific power under the rules to extend a time fixed either by the rules or an order.
In FAI, Gaudron J discussed the question as to the point at which a court becomes functus officio. Her Honour did not consider that a court is functus officio after the time for compliance with a self-executing order expires, as there is still a judicial function to be performed, saying (at 289-290): Although the rule that a court may not vary a duly entered order which brings proceedings to a conclusion rests, at least in part, on the obvious desirability that litigation should be brought to an end, the converse of that rule viz. that a court of record may vary an order before the order is entered must rest on the notion that a court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court. Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as "dead", that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin and Bailey.
Her Honour noted (at 290-291) that it was yet to be considered whether an order which had been duly entered could be the subject of an extension of time for compliance under the court rules: …as a conditional order for dismissal such as that presently under consideration neither renders the Court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt 2, r. 3… Pt 2, r. 3 must be construed as authorising the Court to enlarge the time fixed by a duly entered conditional order for dismissal notwithstanding that the time so fixed has expired, unless such authority is expressly excluded by statute or other rule of court. It remains to be considered whether Pt 40, r. 9 excludes the exercise of the general power to extend time when the time sought to be extended is fixed by a duly entered order for conditional dismissal and the time has expired… If an order enlarging time fixed by a conditional order for dismissal amounts to a setting aside or variation of an order for dismissal, then the power to make such an order is expressly saved by subr. (5). If it does not amount to a setting aside or variation then it does not fall within the terms of subr. (4). On no basis can it be said that Pt 40, r. 9 amounts to an exclusion of the general power conferred by Pt 2, r. 3.
Neither Marinoff nor Mango Boulevard expressly considered the doctrine of functus officio. Mango Boulevard was also a case of an order that the proceeding "stand dismissed", rather than entry of default judgment. The Court there dealt with FAI by stating that, in matters where a court is required subsequently to hear whether the conditions of the self-executing order were satisfied, then judgment is yet to be made and, therefore, time for compliance can be extended; however, it was noted that this was not the course in most cases concerning self-executing orders. At [106], Fraser JA said: Gaudron J's obiter dictum is not inconsistent with the long standing practice in the courts of this State and elsewhere of making self-executing orders which operate as final judgments upon satisfaction of expressed conditions. In a subsequent hearing a court might determine whether the conditions were or were not satisfied. If it is found that the conditions were satisfied that finding will quell the controversy and the court will confirm the status of the order as a judgment. If the conditions are found not to have been satisfied that will establish that there was no judgment. The possibility that such a dispute might arise could be deployed in an argument that a self-executing order should not be made in a particular case, but that possibility does not deny the power to make such an order. It should be remembered that in the vast majority of cases, as in this case, there is no dispute about satisfaction of the conditions. FAI v Southern Cross left intact the authority of Bailey v Marinoff and other decisions which treat a duly entered self-executing order as being effective as a judgment according to its own terms.
Having considered the above authorities, and noting the similarity between r 1.12 of the UCPR and Pt 2, r 3 of the Supreme Court Rules, I am bound to conclude that there is power under the UCPR to entertain an application for extension of the time for compliance with the July Orders in the present case (applying the dicta in FAI), even though non-compliance therewith gave rise to default judgment against the defendants. I can see no relevant distinction between the respective iterations of the Court rules in this regard.
As to the distinction drawn by the plaintiff between an order for default judgment and an order that proceedings stand dismissed (being a basis on which the plaintiff seeks to distinguish FAI) as noted above, the plaintiff says that FAI concerned a self-executing order which resulted in the dismissal of the proceeding whereas, in the present case, if orders 1 to 7 as sought by the plaintiff were made, this would operate as a final judgment and it would therefore not be open to the defendants to bring fresh proceedings (as was the case for the plaintiffs in FAI). The plaintiff here seems to be placing weight on the final effect of a default judgment as opposed to a dismissal of proceedings without a hearing on the merits (the latter being circumstances where it may be open to bring fresh proceedings). I accept that there is a distinction between orders for the dismissal of proceedings without a hearing on the merits and entry of default judgment, although I am not persuaded that this is a relevant point of distinction for the purposes of the present issue to be determined.
As to the plaintiff's contention that it would not be open to the defendants to seek to set aside a judgment entered pursuant to prayers 1 to 7 of the plaintiff's July notice of motion, the making or entry of default judgment (for which provision was made by the July Orders) would not in terms preclude an application, pursuant to r 36.16(2)(a) of the UCPR, for the setting aside of the default judgment. Such a default judgment is not one given in open court - it is one that arises on the failure to comply with a self-executing order. The plaintiff submits that it would not be open to the defendants to apply to set aside a default judgment entered pursuant to the July Orders, because the orders so made would arise "not by way of default judgment but pursuant to self-executing consent orders". If I understand the submission correctly, this seems to me to be suggesting that the default judgment so made would somehow not fall within r 36.16 (say, perhaps, because it would be treated as not having been given "in open court"). I do not accept that this follows.
Nor do I consider it necessary, in light of the decision in Mango Boulevard, to enter into consideration of the distinction between the making (or pronouncement) of an order for judgment and formal entry of judgment (see, in a different context, the discussion in Pearl Bay Corp Pty Ltd v Lodur Pty Ltd (2001) 19 ACLC 982; [2000] WASC 315 per Sanderson M at [6]-[9] as to when a judgment debt arose; adopted in Alternative Engine Technologies Pty Limited v Kruger Ventures Pty Limited (No 2) [2010] SASC 60 per Lunn J (at [11]-[12]), about which there was no discussion raised in the submissions in the present case (but which I have assumed was the premise underlying the plaintiff's submissions referred to in [57] above).
As I have concluded that FAI makes clear that there is power to extend time after default judgment has arisen, pursuant to the self-executing orders made in the present case. the question is then whether such an extension is in the interests of justice (or, as it was expressed in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104, whether the justice of the case requires this).
In the present case, there was a one day delay. That is hardly gross default or delay, even accepting that it followed two earlier instances of non-compliance (one of which followed the plaintiff's default) and even though the May Orders were also by consent.
Leaving aside the question of costs (which I deal with in due course), I do not accept that there will be prejudice caused to the plaintiff as a result of an extension of time other than that the plaintiff would then be required to proceed to a determination of their claims on the merits (which would be the case if default judgment were entered and then set aside on an application that has so clearly been foreshadowed by the defendants).
As to the position of the defendants, the appeal by them to the "severity of the matter" goes to the prejudice that would be suffered if the extension is not granted (in that orders for default judgment and possession of the properties the subject of the dispute would be entered). True it is that the defendants must always have appreciated the "severity of the matter" (i.e., in terms of the consequences of being unable to defend the proceeding) but that does not gainsay that being deprived of an opportunity to defend the proceeding (where so much is at stake for the defendants) in circumstances where there has been a one day delay in their compliance with the self-executing orders does seem to me to be a severe consequence for a very minor delay (and notwithstanding that this is not the first instance of non-compliance with Court orders). The fundamental importance for parties to have their claims dealt with on the merits underlies the recognition in the high threshold required to be met, for example, on summary dismissal applications (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 per Barwick CJ at 129). It is clear therefore that the defendants will suffer prejudice in terms of being unable to defend the claims against them on their merits if the relief sought by the plaintiff is granted. The only question is whether, in all the circumstances, that would produce an injustice (or, framed differently, prejudice that outweighs the prejudice to the plaintiff of not granting the relief it seeks).
I accept that the conduct of the defendants in this proceeding has been unsatisfactory and has not been compliant with the statutory mandate for the just, quick and cheap resolution of the real issues in dispute in the proceeding (see s 56 of the Civil Procedure Act 2005 (NSW). I consider it is also unsatisfactory that there has been no explanation as to the reason for the delay (see, in a different context, Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon Risk), as to the need for satisfactory explanation being provided when there is an application seeking an indulgence akin to that which is here sought by the defendants).
Litigants in general (and in particular, the defendants in the present case) ought to appreciate that court-ordered timetables are not aspirational; and that adverse consequences may follow from non-compliance with such timetables which will not necessarily be seen to be productive of injustice. There is a very real sense in which the present situation can be said to be wholly of the defendants' own making; and the plaintiff's evident frustration with what has occurred is perfectly understandable. There is also some force in the plaintiff's submission that an extension of time would defeat the purpose of self-executing orders of this kind. Nevertheless, what must be determined is the application at hand, not whether it may have the effect that other litigants in future may be less willing to consent to self-executing orders of this kind.
Accepting that costs are not a panacea for all ills (again, see Aon Risk), it seems to me that in the present circumstances the extension of time here sought should be granted, albeit at the price not only of costs in relation to the present application (which would not have been necessary had the defendants complied with the orders to the making of which they had themselves consented), in respect of which the defendants have sought and obtained a not insignificant indulgence, but also of the costs thrown away by the consistent pattern of non-compliance with consent orders for the filing of their evidence in the proceeding (which is not consistent with the statutory mandate for the just, quick and cheap resolution of the real issues in dispute).
The plaintiff's position is that the July Orders were agreed on the basis that this was a final opportunity (or indulgence) provided to the defendants. Whether there was an agreement in those terms is not necessary here to determine. The objective fact is that the defendants obtained an indulgence when the July Orders were made (which circumvented the default judgment application then to be determined) and they have proffered no explanation for their non-compliance with the (second) self-executing regime that was then put in place. The plaintiff says that in effect (and there is no reason not to accept this), it could simply have pressed for default judgment on 26 July 2021. I accept that the plaintiff could have done so - though whether default judgment if then entered could later have been set aside (say, for error in the exercise of the discretion involved in its grant, is another matter).
Nevertheless, I remain of the view that the proper exercise of the discretion in all the circumstances is not to grant the relief sought by the plaintiff but instead retrospectively to extend the time for compliance with Order 1 of the July Orders to 3 August 2021 (at the price of the making of costs orders to reflect the indulgence so granted and the costs thrown away by the delay in compliance with the Court orders).
Taking into account the above matters (and having regard to the fact that this is a discrete issue and the timeframe for the likely determination of the substantive dispute is not known), I also consider that those costs should be payable forthwith.
Finally, to remedy the deficiency in the defendants' evidence on the present application, and in particular, to address reason for the delay, I also consider that the defendants should file and serve an affidavit explaining the delay in compliance with both the May and July Orders.

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