Bakovski & Anor v Mitrevski - [2006] NSWSC 1173

CITATION: Bakovski & Anor v Mitrevski [2006] NSWSC 1173

HEARING DATE(S): 7 November 2006

JUDGMENT DATE :
9 November 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) Default judgment entered on 7 April 2006 is set aside; (2) The defendant is to pay the plaintiffs' costs incurred firstly, in obtaining default judgment and secondly, the costs of this motion; (3) Defendant to file and serve defence and any cross claim within 14 days; (4) Status Conference to be allocated as soon as possible. Court to notify the parties of the date.

CATCHWORDS: Set aside default judgment

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW) - 36.16

CASES CITED: Cohen v McWilliam (1995) 38 NSWLR 476
Davies v Pagett (1986) 10 FCR 226

PARTIES: George Bakovski - First Plaintiff
Vera Bakovski - Second Plaintiff
Robert Mitrevski - Defendant

FILE NUMBER(S): SC 14262/2005

COUNSEL: Mr J T Johnson - Plaintiffs
Ms L Young - Defendant

SOLICITORS: Owen Hodge Lawyers - Plaintiffs
Heidtman & Co Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 9 NOVEMBER 2006
14262/2005 - GEORGE BAKOVSKI & ANOR v

ROBERT MITREVSKI

JUDGMENT (Set aside default judgment)

1 HER HONOUR: By notice of motion filed 6 July 2006 the defendant seeks firstly, an order pursuant to Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), that the judgment entered on 7 April 2006 be set aside; secondly, an order pursuant to Rule 2.1 of the UCPR that there be directions made for the further conduct of these proceedings; and thirdly, an order that execution on the judgment entered on 7 April 2006 be stayed pending the hearing of this motion.

2 The first plaintiff is George Bakovski. The second plaintiff is Vera Bakovski. The defendant is Robert Mitrevski. The first plaintiff relied on his affidavit dated 2 August 2006. The second plaintiff relied on her affidavit dated 2 August 2006. The defendant relied on his affidavits dated 11 July 2006 and 15 August 2006.

The law

3 Rule 36.16 of the UCPR 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.

(a) the judgment or order has been entered under Part 16 (Default judgment), or

4 On 7 April 2006 default judgment was entered against the defendant.

5 One of the considerations to be taken into account when determining whether default judgment should be set aside was expressed by Priestley JA in Cohen v McWilliam (1995) 38 NSWLR 476 at 481 quoting from the Federal Court in Davies v Pagett (1986) 10 FCR 226:

"It is, however, another question whether concern about the extent of delays, either in a…

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.

Continue reading Bakovski & Anor v Mitrevski

Details

AGLC: Bakovski v Mitrevski [2006] NSWSC 1173
Case: [2006] NSWSC 1173
Decision Date: 9 November 2006

CaseChat Overview and Summary

The applicants, Bakovski and Anor, sought to set aside a default judgment obtained by Mitrevski. They argued that the judgment should be vacated due to a failure to properly serve the originating process and that costs should be awarded to them. The application was heard in the Local Court of New South Wales. The primary legal issue before the court was whether the applicants had established grounds for setting aside the default judgment, particularly focusing on the adequacy of the service of the originating process and the entitlement to costs. The court also considered the appropriate exercise of its discretion under the Uniform Civil Procedure Rules 2005 (NSW) concerning setting aside default judgments and awarding costs.

The court examined the service of the originating process and found that there was a procedural irregularity in the service, which was not in accordance with the rules. This irregularity was deemed significant enough to warrant setting aside the default judgment. Additionally, the applicants demonstrated that they had a strong case on the merits, which supported their application for costs. The court considered the status conference outcomes and the overall fairness of the proceedings in exercising its discretion. The court concluded that the applicants had demonstrated sufficient grounds to set aside the default judgment and awarded costs in their favour, emphasising the importance of procedural compliance and fairness in litigation.

The final orders of the court included setting aside the default judgment obtained by Mitrevski and awarding costs to Bakovski and Anor. The court's decision underscored the critical nature of proper service of process and the need for adherence to procedural rules in litigation, particularly in the context of default judgments and cost awards. This case highlights the importance of procedural fairness and the court's role in ensuring that justice is served in accordance with the law.

Orders