Embrey v Smart

Embrey v Smart involved a dispute over the setting aside of a default judgment in Queensland. The plaintiff, Embrey, sought to have a default judgment entered against the first defendant, Smart, set aside on the basis that it was irregularly entered. The case was heard in the Supreme Court of Queensland, where the plaintiff argued that the default judgment should be set aside pursuant to rule 290 of the Uniform Civil Procedure Rules. The plaintiff also sought to set aside consequential orders resulting from the default judgment.

The court was required to determine whether the default judgment, entered against the first defendant in Supreme Court Proceeding no. 9104/10, should be set aside. Additionally, the court needed to decide whether the consequential orders should also be set aside. The key legal issue was whether the default judgment was irregularly entered, warranting its setting aside under the UCPR.

The court dismissed the application filed on 24 April 2013 in Proceeding No. 7490 of 2010, reserving the costs of that application in Proceeding No. 9104. Regarding the default judgment in Proceeding No. 9104 of 2010, the court found that the judgment entered on 4 November 2010, as well as the orders of Fryberg J on 20 June 2011 and Clare SC DCJ on 29 August 2011, should be set aside. The court also reserved the costs thrown away by reason of those judgments and orders being set aside, as well as the costs of and incidental to the application filed on 24 April 2013.