85 Degrees Coffee Australia Pty Ltd v Ji

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

85 Degrees Coffee Australia Pty Ltd v Ji [2021] NSWDC 99

Hearing dates:

17 March 2021

Date of orders:

31 March 2021

Decision date:

31 March 2021

Jurisdiction:

Civil

Before:

Scotting DCJ

Decision:

(1)   The default judgment entered on 27 April 2020 is set aside.

(2)   The defendant is directed to file and serve a Defence to the Statement of Claim on or before 5pm on Wednesday 14 April 2021.

(3)   The defendant is to pay 50% of the plaintiff’s costs of the Notice of Motion, as agreed or assessed.

(4)   The defendant is to pay any disbursements, but not professional costs, relating to the registration of the writ of execution.

(5)   Matter is listed for directions on Wednesday 28 April 2021 before the Judicial Registrar.

Catchwords:

CIVIL PROCEDURE — Default judgment — Setting aside — Bona fide defence on merits

Cases Cited:

Batiste v Gilmour-Latham [2001] NSWCA 392

Hoyts Pty Ltd v Spencer (1991) 27 CLR 133

J&M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283

Texts Cited:

Australian Consumer Law

Category:

Procedural rulings

Parties:

Lanfang Ji (Defendant/Applicant)
85 Degrees Coffee Australia Pty Ltd (Plaintiff/Respondent)

Representation:

Counsel: D Smallbone (Plaintiff/Respondent)
J Clifton (Defendant/Applicant)

Solicitors: Accuro Maxwell (Sydney) (Plaintiff/Respondent)
Raymond Lee & Co (Defendant/Applicant)

File Number(s):

2020/31021

Publication restriction:

None

Judgment

Introduction

1. Lanfang Ji (the defendant) seeks an order setting aside the default judgment entered against her by 85 Degrees Coffee Australia Pty Ltd (the plaintiff).

2. The plaintiff resists the application on three grounds, namely that:

1. the defendant has not provided a satisfactory explanation for the delay;

2. the evidence relied on by the defendant does not support the contention that she has a bona fide defence to the plaintiff’s claim; and

3. if the application is granted that the order should be subject to conditions including the provision of security for the amount alleged to be owing to the plaintiff in the Statement of Claim.

Evidence on the Notice of Motion

3. The defendant read the following affidavits:

1. Affidavit of Lanfang Ji affirmed 30 July 2020;

2. Affidavit of Lanfang Ji affirmed 23 November 2020.

4. The plaintiff read the following affidavit:

1. Affidavit of Hao Fan affirmed 25 November 2020.

5. Neither of the deponents was cross-examined on the motion.

Factual Background

6. On 10 December 2016, Ji International Trading Pty Ltd (JIT), a company controlled by the defendant, entered into a franchise agreement with the plaintiff. The defendant executed a guarantee, guaranteeing the obligations of JIT under the franchise agreement. The plaintiff is a franchisor of a brand that operates a number of franchised bakeries and coffee shops.

7. In or about September 2017, JIT commenced to operate a franchised coffee shop at Shop 61 Ashfield Mall (the shop), pursuant to the franchise agreement.

8. In or about late 2019, JIT handed back the shop to the plaintiff, alleging that it had failed to generate the level of revenue that the plaintiff represented that it would.…