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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. There is an arguable defence. Under UCPR 36.6(2), the Court may set aside or vary a judgment or order after it has been entered, if it is a default judgment not given in open Court. This was a default judgment not given in open Court. The default judgment, referred to by the rule which I have quoted, includes a default judgment given for want of filing a defence.

7. That is the position in the present case. The exercise of the discretion to set aside a judgment order requires regard to the interests of justice and the competing interests of the respective parties in determining whether a defendant should be permitted to contest the plaintiff's claim. The leading case at the current time is Dai v Zhu [2013] NSWCA 412.

8. Factors relevant to the exercise of the discretion include irregularity. There is some irregularity because part of the claim was not a liquidated claim, and another factor is the interests of justice if there be issues in dispute. If there is a genuine basis for defending the plaintiff's claim, that is the existence of a defence on the merits, the relief will be granted. Again, the case I have just cited bears that out and is based on pre‑existing case law, for example, Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 244.

9. Here, there has obviously been a great delay in the application to set aside the default judgment, but bearing in mind the facts relied upon by the defendant, if the defendant be correct, he was never served with anything or made aware of the existence of the proceedings and the entry of default judgment. That, of course, is contested by the plaintiff, but this is a case where there is clearly a real dispute as to all relevant facts between the plaintiff and the defendant and the evidence before me does provide corroboration of at least one aspect of the defendant's case.

10. For those reasons, there is, in my view, an arguable defence. I set aside the default judgment entered by the Registrar on 20 December 2012. It follows that the examination order made on 29 May 2024 is set aside.

11. I order the plaintiff to file and serve an amended statement of claim in proper form within 28 days.

12. I order the defendant to file a defence within 21 days of service upon his solicitor of the amended statement of claim.

13. Stood over to the Judicial Registrar's list on 22 October 2024 for further directions.

14. I set aside the Garnishee order made on 20 December 2012.

15. Costs of notice of motion filed 19 June 2024 reserved to trial Judge.

16. HIS HONOUR: Any other orders sought?

HAINES: Not from me, your Honour.

HIS HONOUR: Thank you. Yes?

FIELDER: No, your Honour.

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Decision last updated: 08 April 2025