Dimitrovski v Australian Executor Trustees Ltd

In the matter of Dimitrovski v Australian Executor Trustees Ltd, the primary issue was whether a default judgment for possession, entered on the basis of an alleged mortgage, could be set aside. The case was heard in the Supreme Court of New South Wales. The plaintiff, Dimitrovski, sought to vacate the default judgment and argued that the judgment should be set aside due to irregularities and the existence of a defence that was not raised.

The court was required to determine the meaning and scope of 'irregularity' as outlined in Uniform Civil Procedure Rule 36.15 and whether the existence of an arguable defence, which was not raised, constituted such an irregularity. Additionally, the court had to consider the principle of finality and res judicata in the context of the default judgment. The court also needed to assess whether the capacity of the defendants, specifically their role as executors, was relevant to the regularity of the judgment.

The court held that the concept of irregularity, as per Rule 36.15, was limited to the process by which the judgment was entered and did not include the mere existence of an arguable defence. The court found that the default judgment was regularly obtained and entered, and therefore refused to set it aside due to the principle of finality. The court further held that the confirmation of the judgment for possession, which was predicated on the validity of the mortgage, precluded any challenge to the validity of the mortgage in separate proceedings. Finally, the court determined that the representative capacity of the executors was irrelevant to the liability or regularity of the judgment, and it was not necessary that they be sued and named in their capacity as executors.