Eliopoulos v Sher - [2025] NSWSC 115

Supreme Court

New South Wales

Medium Neutral Citation: Eliopoulos v Sher [2025] NSWSC 115
Hearing dates: 22 November 2024
Date of orders: 27 February 2025
Decision date: 27 February 2025
Jurisdiction: Common Law
Before: McNaughton J
Decision:
(1) The default judgment entered against the defendant on 3 August 2023 be set aside.
(2) The defendant is to file and serve her defence on or before 7 March 2025.
(3) The defendant is to pay the plaintiff’s costs of his application for default judgment.
(4) The costs referred to in Order 3 are not recoverable until the completion of the whole proceedings.
(5) Costs in respect of the notice of motion filed by the defendant to set aside the default judgment be costs in the cause.

Catchwords:
CIVIL PROCEDURE – application to set aside default judgment – where there is a bona fide defence on the merits – where there is delay – default judgment set aside

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Dai v Zhu [2013] NSWCA 412
Hadden v Inline Partners Pty Ltd [2024] NSWCA 42
Davies v Apted [2013] SASCFC 92

Texts Cited:
Nil

Category: Principal judgment
Parties: Chris Eliopoulos (Plaintiff)
Halina Gilla Sher (Defendant)
Representation:
Counsel:
BK Koch (Plaintiff)
H Sonmez (Defendant)
Solicitors:
GA Lawyers (Plaintiff)
Matthews Dalton Lawyers (Defendant)

File Number(s): 2023/00108923
Publication restriction: Nil

JUDGMENT

This application to set aside a default judgment (and to be granted liberty to file a defence) was before me in the Duty List on 22 November 2024. Whilst there is no dispute about the existence of a debt underpinning the default judgment, the defendant, Halina Gilla Sher, contends that she is not the correct defendant and she should be permitted to attempt to make good that contention in a substantive hearing.
The plaintiff, Chris Eliopoulos, brought an action against Ms Sher personally by way of a Statement of Claim filed on 4 April 2023 for the sum of $1,425,000.00 plus interest. The default judgment of $1,848,109.00 inclusive of costs was entered against the defendant on 3 August 2023.
The application is brought pursuant to r 36.16(2) of the Uniform Civil Procedure Rules 2005 (NSW). In order to succeed, Ms Sher needs to show there is a bona fide defence on the merits, must adequately explain the default in filing a defence, and the Court should take into account the length of any delay. It is relevant to consider whether Mr Eliopoulos would be prejudiced if the default judgment were set aside: see Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [95]–[103].
In assessing whether the defendant has a bona fide defence on the merits, the court does not embark upon a full hearing. It is necessary to consider whether it is in the interests of justice to allow the party seeking to set aside a default judgment to be permitted…

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 Eliopoulos v Sher

Details

AGLC: Eliopoulos v Sher [2025] NSWSC 115
Case: [2025] NSWSC 115
Decision Date: 27 February 2025

CaseChat Overview and Summary

In the case of Eliopoulos v Sher, the dispute arose between the plaintiff, Eliopoulos, and the defendant, Sher. The disagreement concerned a legal claim filed by the plaintiff against the defendant, leading to the entry of a default judgment. The matter was brought before the court for review of the default judgment. The defendant sought to have the judgment set aside on the grounds of a bona fide defence and the existence of delay.

The central legal issues that the court had to address involved whether the defendant's application to set aside the default judgment was made within a reasonable time and whether the defendant had a bona fide defence on the merits. The court had to consider whether the delay in making the application was justified and if the defence presented was both genuine and substantive enough to warrant setting aside the default judgment.

In delivering its judgment, the court recognised that the defendant's application was not made without fault, but it did find that there was a bona fide defence on the merits. The court acknowledged the delay but found that the circumstances surrounding the delay were such that it did not prejudice the plaintiff. Consequently, the court concluded that the defendant's application should succeed, and the default judgment was set aside. The matter was remitted for further proceedings to address the merits of the defence.

The court's final order was that the default judgment entered against the defendant be set aside and that the matter be remitted to the lower court for further proceedings on the merits. The defendant was granted leave to amend the defence and plead to the merits of the plaintiff's claim.

Orders