Di Maria v Istanbouli

[2013] NSWDC 60

District Court

New South Wales

Medium Neutral Citation:

Di Maria v Istanbouli [2013] NSWDC 60

Hearing dates:

26 April 2013

Decision date:

26 April 2013

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

1. First and second defendants' notice of motion to set aside default judgment dismissed.

2. Order the first and second defendants to pay the plaintiff's costs of the motion.

Catchwords:

NOTICE OF MOTION - set aside default judgment - no appearance - no utility in adjournment

Category:

Interlocutory applications

Parties:

Sebastian Di Maria (plaintiff)
Joseph Istanbouli (first defendant)
Melissa Bell (second defendant)

Representation:

Gibson Howlin Lawyers (plaintiff)

File Number(s):

2012/270443

Publication restriction:

No

EX TEMPORE Judgment

1. The defendants, Melissa Bell and Joseph Istanbouli, have made an application to set aside a default judgment for a substantial sum against them. However, nobody is present in court to make the application and when the matter was called outside the court there was no appearance.

1. In the course of determining whether I should dismiss the motion or grant some adjournment in case the defendants still wish to pursue the application, the solicitor for the plaintiff was content for me to view the affidavit material that had been filed on behalf of the defendants. That affidavit material disclosed an allegation that a statement of claim had not been served on the defendants. There are affidavits which were relied upon by the plaintiff to the contrary, but the defendants' affidavits raise an arguable matter about a possible cause of delay. However, there is no explanation for the delay that has been occasioned over the past month in respect of this particular application and why the defendants are not present.

1. In those circumstances I am not satisfied that the affidavits disclose an adequate and proper explanation for the delay in defending the proceedings.

1. Another relevant matter in respect of setting aside a default judgment is whether there is an arguable defence. The affidavits of the defendants refer to a document and contest whether that document or documents were signed by them. From viewing the defendants' signatures on the affidavits and the document, which is in evidence, all I can say is that the signatures bear some similarity. In addition, the plaintiff has read the affidavits of Marisa Ayala of 11 March 2013 and Sebastian Di Maria of 11 March 2013 where both deponents give evidence of knowing the defendants and witnessing them sign the documents.

1. In those circumstances I could not be satisfied that the documents were not genuine or were a forgery without some expert evidence or further evidence from the defendants. Neither of those avenues are available as the defendants have not attended and no expert evidence has been filed.

1. I also note that in the affidavits there is not an unequivocal allegation of not signing the document but rather that the defendants would "seek to defend" the matter "on the basis" that signatures were forged and that they deny they "entered into an agreement" and that the loan was "advanced".

1. There is no material before me to indicate that there would be any useful purpose to be served by adjourning the matter. There is no evidence that this particular date for hearing of 26 April was in someway inconvenient or caused problems to the defendants.

1. Accordingly, for the reasons that there is no person here to conduct the motion, that there is no full and satisfactory explanation for the delay, that I am not satisfied on the material that I have seen that the defendants have an arguable defence, and finally because there is no material to support the proposition that any benefit would be gained from adjourning the proceedings, I propose to dismiss the application to set aside the default judgment and order the applicant defendants to pay the plaintiff's costs of the application.

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Decision last updated: 14 May 2013