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Di Gregorio v Jersey Developments 27 Pty Ltd

Di Gregorio v Jersey Developments 27 Pty Ltd

Case [2018] NSWSC 966 19 June 2018

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Res Judicata

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Di Gregorio v Jersey Developments 27 Pty Ltd [2018] NSWSC 966
Hearing dates: 19 June 2018
Date of orders: 19 June 2018
Decision date: 19 June 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Judgment set aside under UCPR r 36.16(2)(b).

Catchwords: PRACTICE AND PROCEDURE – power to set aside judgment given in absence of party –judgment entered pursuant to terms of consent orders – consent orders provided for judgment to be entered for the amount of the plaintiffs’ claim upon default in the making of payments – whether provision a penalty – whether there was an implied acknowledgment of existing debt – judgment set aside
Legislation Cited: Uniform Civil Procedure Rules, rr 36.15, 36.16
Cases Cited: Acron Pacific Ltd v Offshore Oil NL (1985) 157 CLR 514
Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30
Australian Management Consultants Pty Ltd v Direct Mortgage Funding Pty Ltd [2003] VSC 202
Auzcare Pty Ltd v Idameneo (No 123) Pty Ltd (2015) 91 NSWLR 581; [2015] NSWCA 412
Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77
Brags Electrics Pty Ltd v Gregory [2010] NSWSC 1205
Calcorp (Australia) Pty Ltd v 271 Collins Pty Ltd (2010) 29 VR 462
Cameron v UBS AG (2000) 2 VR 108; [2000] VSCA 222
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130
Lachlan v HP Mercantile Pty Ltd [2014] NSWSC 356
O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359
Category: Procedural and other rulings
Parties: Giuseppe Di Gregorio (First Plaintiff)
Giuseppina Di Gregorio (Second Plaintiff)
Stefano Di Giovanni (Third Plaintiff)
Maria Di Giovanni (Fourth Plaintiff)
Jersey Developments 27 Pty Ltd (First Defendant)
Joseph Taouk (Second Defendant)
Representation:
Counsel:
Mr H W Somerville (Plaintiffs)
Mr F C Corsaro SC and Mr D Allen (Second Defendant)
Solicitors:
MDW Law (Plaintiffs)
Gardner Ekes Lawyers (Second Defendant)

File Number(s): 2016/28590
Publication restriction: None

Judgment – ex tempore

By an Amended Notice of Motion filed on 11 May 2018, the second defendant seeks an order that order 1 made by the Court on 14 March 2018, being a judgment entered against the defendants in the sum of $754,700.61, be set aside.
The order was made in the absence of the defendants. Accordingly the Court has the power to set aside the order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 36.16(2)(b). The order was made in accordance with the terms of a Consent Order that had been made on 24 May 2017. The order was not a default judgment, as defined for the purposes of the UCPR, so the power to set aside under UCPR r 36.16(2)(a) is not enlivened.
The terms of the Consent Order are as follows:

TERMS OF ORDER MADE BY THE COURT BY CONSENT
1. Note that the Plaintiffs and the First and Second Defendants have reached an agreement to settle their differences and…

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 Di Gregorio v Jersey Developments 27 Pty Ltd

Details

AGLC: Di Gregorio v Jersey Developments 27 Pty Ltd [2018] NSWSC 966
Case: [2018] NSWSC 966
Decision Date: 19 June 2018

CaseChat Overview and Summary

The matter before the court involved Di Gregorio, the plaintiff, and Jersey Developments 27 Pty Ltd, the defendant. The dispute arose from a contractual obligation where the defendant was required to make certain payments to the plaintiff. The defendant defaulted in making these payments, leading to the plaintiff seeking to enforce a judgment against the defendant. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the provision in the consent orders that allowed for the entry of judgment in the absence of the defendant was a penalty and whether there was an implied acknowledgment of an existing debt. The court had to determine if the provision was a genuine pre-estimate of damages or an unenforceable penalty, as well as whether there was a valid acknowledgment of the debt by the defendant.

The court found that the provision in the consent orders was not a penalty but rather a genuine pre-estimate of damages. It concluded that the provision was a legitimate method of ensuring that the defendant fulfilled their contractual obligations. The court also held that there was no implied acknowledgment of an existing debt by the defendant. As a result, the judgment entered in the absence of the defendant was set aside. The court considered the equitable nature of the consent orders and the intention of the parties in reaching its decision.

The final orders of the court were that the judgment entered against the defendant be set aside, and the matter be remitted to the Registrar for further directions. The court emphasised the importance of ensuring that consent orders are carefully drafted to avoid potential unfairness or unenforceability.

Orders