Ayoubi v Faleh

The case of Ayoubi v Faleh involved the applicant, Mr. Ayoubi, seeking to set aside default orders made against him in the absence of his appearance in the Supreme Court of New South Wales. The defendant, Mr. Faleh, had obtained default judgment without Mr. Ayoubi's knowledge or participation due to alleged procedural irregularities. The central issue for the court was whether Mr. Ayoubi had provided a sufficient explanation for his absence at the hearing, thereby warranting the setting aside of the orders under rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court had to consider whether Mr. Ayoubi had a viable case on the merits, which would influence the exercise of its discretion.

The court began by examining the affidavits and submissions provided by Mr. Ayoubi to ascertain whether his absence was justified. It was noted that Mr. Ayoubi had cited a series of personal and professional circumstances that prevented him from attending the hearing, including illness and misunderstanding regarding the hearing date. The court also considered the merits of Mr. Ayoubi's defence to determine if there was a prospect of success if the case proceeded. The reasoning of the court involved a careful assessment of the credibility of Mr. Ayoubi's explanation and the strength of his defence. Ultimately, the court concluded that the explanation provided by Mr. Ayoubi was sufficient to justify his absence, and his prospects of success on the merits were reasonable. Consequently, the court exercised its discretion to set aside the default orders.

The final orders of the court were to set aside the default orders made against Mr. Ayoubi and to reinstate his defence, allowing the case to proceed to a hearing on the merits. The court mandated that both parties would bear their own costs for the application. The decision underscores the importance of providing a credible explanation for absence in legal proceedings and highlights the court's discretion in considering applications to set aside default orders.