Cronau v Vavakis (No 3) - [2018] NSWSC 1973

Supreme Court

New South Wales

Medium Neutral Citation: Cronau v Vavakis (No 3) [2018] NSWSC 1973
Hearing dates: 10 December 2018
Date of orders: 10 December 2018
Decision date: 10 December 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Pursuant to r 36.16 of the Uniform Civil Procedure Rules, order that the default judgment entered against the defendant on 19 October 2018 be set aside; order the defendant to pay the plaintiff’s costs of the application for default judgment; order that the cost of today’s motion be costs in the cause.

Catchwords: CIVIL PROCEDURE – application to set aside default judgment – where originating process served by substituted service – short period of delay between when defendant learned of proceedings and when default judgment entered – existence of arguable defences
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Cronau v Vavakis [2018] NSWSC 1642
Cronau v Vavakis (No 2) [2018] NSWSC 1644
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Dank v Cronulla-Sutherland District Rugby League Football Club (No 3) [2013] NSWSC 1850
Dank v Whittaker (No 1) [2013] NSWSC 1062
Dunwoodie v Teachers Mutual Bank Limited [2014] NSWCA 24
Category: Procedural and other rulings
Parties: Christine Cronau (plaintiff)
Christopher Vavakis (defendant)
Representation:
Counsel:
A Munro (plaintiff)
R Potter (defendant)
Solicitors:
O’Brien Solicitors Pty Ltd (plaintiff)
Wotton & Kearney (defendant)

File Number(s): 2018/172522
Publication restriction: None

Judgment ex tempore – revised

HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 1 June 2018. The plaintiff was unable to serve the originating process on the defendant in person. On 17 August 2018, an order for substituted service was obtained: Cronau v Vavakis [2018] NSWSC 1642.
On 19 October 2018, no appearance or defence having been filed, default judgment was entered for the plaintiff and the proceedings were stood over to 23 November 2018 for the assessment of damages: Cronau v Vavakis (No 2) [2018] NSWSC 1644.
On 16 November 2018, the defendant filed a notice of appearance and a notice of motion seeking to vacate the hearing date for the assessment of damages and to have the default judgment set aside. This judgment determines that application. For the following reasons, I have determined that the relief sought by the defendant should be granted.
The application invokes the Court's authority under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). There was no dispute between the parties as to the proper approach to the exercise of that power. The defendant's submissions relied on the decision of McColl JA in Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 at [43] to [46] where her Honour summarised the relevant principles as follows:

43 The Court's jurisdiction to set aside the default judgement is found in the bald terms of Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 36.16(2)(a), providing the "court may set aside or vary a judgment or order after it has been entered if…

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 Cronau v Vavakis (No 3)

Details

AGLC: Cronau v Vavakis (No 3) [2018] NSWSC 1973
Case: [2018] NSWSC 1973
Decision Date: 10 December 2018

CaseChat Overview and Summary

The case of Cronau v Vavakis (No 3) involved an application by the defendant to set aside a default judgment. The plaintiff, Cronau, sought damages for breach of contract against the defendant, Vavakis. The dispute arose when Vavakis failed to respond to the proceedings, leading to a default judgment being entered against them. The matter was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the substituted service of the originating process was valid and whether the defendant had a sufficient excuse for not responding to the proceedings in time. The court had to consider whether the delay between when the defendant became aware of the proceedings and when the default judgment was entered was too short to allow for a proper response. Additionally, the court needed to determine if the defendant had arguable defences that could potentially defeat the plaintiff's claim.

The court found that the substituted service of the originating process was valid, as it complied with the necessary statutory requirements. The court noted that while there was a short period of delay between when the defendant learned of the proceedings and when the default judgment was entered, this did not necessarily render the judgment irregular. The court emphasised that the defendant's failure to respond was primarily due to their own inaction. However, the court recognised that the defendant had presented arguable defences which could potentially defeat the plaintiff's claim. Based on these findings, the court concluded that the defendant had a sufficient excuse for not responding to the proceedings in time and allowed the application to set aside the default judgment.

The court ordered that the default judgment entered against Vavakis be set aside and that the matter proceed to a hearing on the merits. The court further ordered that Vavakis pay Cronau's costs of the application up to the date of the hearing.

Orders