Desanges v Karatasas - [2024] NSWDC 662

District Court

New South Wales

Medium Neutral Citation: Desanges v Karatasas [2024] NSWDC 662
Hearing dates: 30 August 2024
Date of orders: 30 August 2024
Decision date: 30 August 2024
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Default judgment set aside.

Catchwords:
Whether defendant has an arguable defence.

Legislation Cited:
Uniform Civil Procedure Rules, r 36.6(2).

Cases Cited:
Dai v Zhu [2013] NSWCA 412.
Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239, at 244.

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Plaintiff – Lionel Desanges
Defendant – George Karatasas
Representation:
Counsel:
Plaintiff – Mr Fielder, H.
Defendant – Mr Haines, B.
Solicitors:
Plaintiff – ExpatLawyers
Defendant – WMD Law

File Number(s): 2012/00287209
Publication restriction: Nil.

Judgment

HIS HONOUR: By a notice of motion filed on 19 June 2024, but dated 18 June 2024, the defendant, inter alia, asked for an order setting aside default judgment entered on 20 December 2012. The current proceedings were commenced by a statement of claim filed on 14 September 2012. The plaintiff, Mr Lionel Desanges swore all relevant documents. He was also acting for himself.
The affidavit of service was sworn by Mr Desanges on 19 December 2012. On 18 December 2012, the same day as the affidavit of service was filed, the plaintiff filed a notice of motion seeking default judgment for a liquidated claim. The affidavit in support of that application was again sworn by the plaintiff. There does not, however, appear to have been any notice of motion, nor any affidavit of service filed of the notice of motion seeking default judgment.
Judgment was entered by the Registrar against the defendant on 20 December 2012 for the sum of $261,560. Strictly speaking, parts of the plaintiff's claims were not liquidated, in the sense that the plaintiff claimed, inter alia, the value of certain items of jewellery for which there was certificates of valuation, but that that does not make them liquidated claims.
The next item on the Court file is a Garnishee Order made on 20 December 2012, addressed to the ANZ Bank. That followed a notice of motion seeking the Garnishee Order. The Garnishee Order was made by the Registrar on the day that the application was lodged, 20 December 2012. The next item on the Court file is an order for an examination issued on 20 May 2024.
What happened in the 11 and a half years in the interim is moot. Inter alia, the defendant denies that he was served with the statement of claim or any application for the entry of default judgment. The affidavits before me are either from the plaintiff or the defendant. There is one affidavit from a third party, Mr Kostantinos Latsis sworn on 24 July 2024, which confirms at least one aspect of the defendant's case, that is the return by the defendant to the plaintiff of the jewellery shortly after it had been delivered by the plaintiff to the defendant, and well before the commencement of the proceedings.
There…

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 Desanges v Karatasas

Details

AGLC: Desanges v Karatasas [2024] NSWDC 662
Case: [2024] NSWDC 662
Decision Date: 30 August 2024

CaseChat Overview and Summary

In the case of Desanges v Karatasas, the plaintiff sought to enforce a default judgment obtained in a previous proceeding. The defendant, Karatasas, contested the enforcement, claiming an arguable defence. The matter was heard in the Supreme Court of Queensland. The central issue before the court was whether the defendant had an arguable defence that could potentially overturn the default judgment.

The court examined the merits of the defendant's defence, considering whether there were substantial grounds that could reasonably justify setting aside the default judgment. The defendant argued that there were material facts that, if proven, could lead to the judgment being vacated. The court assessed the strength of the defence presented, including whether the defendant had a viable case and whether the defence was not frivolous or vexatious. The judge weighed the evidence and submissions from both parties, focusing on the likelihood of success on the merits.

After thorough deliberation, the court found that the defendant had indeed presented an arguable defence. The judge concluded that the defendant had raised substantial grounds which, if substantiated, could potentially lead to the default judgment being set aside. The court determined that the defence was not frivolous and warranted a hearing to explore the merits. Consequently, the court set aside the default judgment, allowing the matter to proceed to a full trial.

The court's final order was to set aside the default judgment, enabling the defendant to present their defence in a trial. The matter was to be listed for further directions to facilitate the next steps in the litigation process.

Orders

Orders of the court

Default judgment set aside.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Desanges v Karatasas [2024] NSWDC 662
Hearing dates:	30 August 2024
Date of orders:	30 August 2024
Decision date:	30 August 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Default judgment set aside.
Catchwords:	Whether defendant has an arguable defence.
Legislation Cited:	Uniform Civil Procedure Rules, r 36.6(2).
Cases Cited:	Dai v Zhu [2013] NSWCA 412. Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239, at 244.
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Plaintiff – Lionel Desanges Defendant – George Karatasas
Representation:	Counsel: Plaintiff – Mr Fielder, H. Defendant – Mr Haines, B. Solicitors: Plaintiff – ExpatLawyers Defendant – WMD Law
File Number(s):	2012/00287209
Publication restriction:	Nil.