Atlanta Building Pty Ltd v Abela (No 2) - [2024] NSWSC 1510

Supreme Court

New South Wales

Medium Neutral Citation: Atlanta Building Pty Ltd v Abela (No 2) [2024] NSWSC 1510
Hearing dates: 23, 29 October 2024, submissions received 6, 13, 19 November 2024
Decision date: 27 November 2024
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Orders made on 13 September 2024 striking out the First Defendant’s list response and cross claim and entering default judgment to be set aside

Catchwords:
CIVIL PROCEDURE – default judgment – setting aside – where first defendant defaulted in serving evidence – where list response and cross claim struck out and judgment entered – liberty granted to apply to set aside those orders – liberty exercised – whether orders should be set aside
CIVIL PROCEDURE – service – time for service of notice of motion – where notice of motion must be served three days before return date – where notice of listing issued – time for service of notice of listing – whether notice of listing should also be served three days before return date

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Northey v Bega Valley Shire Council [2012] NSWCA 28
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239

Category: Procedural rulings
Parties: Atlanta Building Pty Ltd (Plaintiff)
David Abela (First Defendant)
Rebecca Amos (Second Defendant)
Representation:
Counsel:
A Fernon SC / M Klooster (Plaintiff)
M Hazan (First Defendant)
Solicitors:
Yates Beaggi Lawyers (Plaintiff)
Piper Alderman (First Defendant)
Cornwalls (Second Defendant)

File Number(s): 2023/111376

JUDGMENT

On 19 August 2019, the plaintiff, Atlanta Building Pty Ltd (the “Builder”), entered into a contract with the defendants, Mr David Abela and his then spouse, Ms Rebecca Amos, to construct a dwelling on a property owned by Mr Abela and Ms Amos at Bangalow.
The Builder purported to terminate the contract on 20 August 2021 and now brings these proceedings against Mr Abela and Ms Amos to recover the amount it contends to be due under the contract.
On 13 September 2024, I struck out Mr Abela’s List Response and his Cross Summons and Cross List Statement and entered judgment in favour of the Builder against Mr Abela in the sum of $830,154.04.
I granted Mr Abela liberty to apply to set aside those orders, with such liberty to be exercised no later than 5pm on 27 September 2024.
Mr Abela has exercised that liberty and, on 26 September 2024, applied to set aside the orders.
I have heard extensive argument about whether my orders should be set aside.
There were half-day hearings on 23 and 29 October 2024 at which a four-volume court book, comprising some 2,655 pages, was tendered, together with a further tender bundle comprising some 250 pages of documents produced on subpoena.
I have now received 45 pages of submissions from the parties.
At the hearing on 29 October 2024, Mr Fernon SC, who appeared with Mr Klooster for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 1510
Decision Date: 27 November 2024

CaseChat Overview and Summary

The case involved Atlanta Building Pty Ltd as the plaintiff and Abela as the first defendant. The dispute originated from a building contract, and the plaintiff sought a default judgment against the defendant. The matter was heard in the Supreme Court of Queensland. The defendant had defaulted in serving evidence, leading the plaintiff to apply for a default judgment. The court struck out the defendant's list response and cross-claim, subsequently entering judgment against the defendant. The defendant later applied to set aside these orders, and the court granted liberty to do so. The defendant exercised this liberty, and the court was required to decide whether to set aside the earlier orders.

The primary legal issue was whether the court should set aside the earlier orders, which had struck out the defendant's list response and cross-claim and entered judgment against the defendant. A secondary issue concerned the service of a notice of motion and a notice of listing. Specifically, the court needed to determine whether a notice of listing should also be served three days before the return date, similar to the notice of motion.

The court found that the earlier orders should be set aside. The defendant had not intentionally defaulted in serving evidence; rather, the default was due to an administrative oversight. The court emphasised that the primary focus should be on the merits of the case, not procedural defaults, especially when the default was not intentional. Regarding the service of notices, the court held that the notice of listing should not be served three days before the return date, as it was not explicitly required by the rules of court. The court's decision was based on the principles of fairness and the intent to ensure that parties could fully participate in the proceedings.

In conclusion, the court set aside the earlier orders that had struck out the defendant's list response and cross-claim and entered judgment against the defendant. The court also clarified that the notice of listing did not need to be served three days before the return date. The defendant's application to set aside the earlier orders was thus successful.

Orders