Gajic v Poyser - [2007] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5016 of 2006

MALOJKO GAJIC and MILEVA GAJIC
	Appellants
v.
MAXWELL ANDREW POYSER	Respondent

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JUDGES:	CHERNOV, ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 JULY 2007
DATE OF JUDGMENT:	30 AUGUST 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 175

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PRACTICE AND PROCEDURE – Judgment in default of defence – Application to set aside default judgment – Not function of court on such application to determine for itself merits of claimed defence or resolve factual disputes – Whether court entitled to consider the defendant’s material “not uncritically” – Claimed defence plainly without merit – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J M Selimi	Starnet Legal Pty Ltd
For the Respondent	Mr P Fary	Wainwrights Pty Ltd

CHERNOV JA:

The appellants, Malojko and Mileva Gajic, appeal, pursuant to leave granted by this Court on 24 November 2006, against the decision and orders of a judge of the Supreme Court sitting in the Practice Court on 21 October 2006.[1] His Honour dismissed the appellants’ appeal against the refusal of the Master to set aside the judgment for possession that was entered against them, in default of defence, on 11 May 2006 in favour of the respondent, Maxwell Andrew Poyser.
[1]Poyser v Gajic [2006] VSC 380.

Background circumstances

Before examining the appellants’ arguments in support of their grounds of appeal, it is necessary to set out briefly the circumstances giving rise to the proceeding. The appellants are a married couple, although it seems that they are now estranged. At all relevant times they resided at 36 Curlew Point Drive, Patterson Lakes (“the property”) which, in September 2004, was valued at $1.25 million. The sole registered proprietor of the property was the second appellant. According to the affidavit of the first appellant sworn on 4 August 2006, the property was registered in the name of the second appellant in order to protect him from potential claims by his creditors in relation to business interests. At the time of the dealing between the parties as will be described, the property was encumbered by a number of securities – two mortgages and four caveats – in respect of the then existing loans that related primarily to the first appellant’s business.

In September 2004 discussions took place between, on the one hand, the first appellant, the appellants’ then solicitor, Mr Zindilis, and their financial advisors, and on the other, Wainwrights, the solicitors for the respondent, in respect of a loan of $200,000 that was sought by the first appellant on the basis that it would be made to the second appellant on the security of a second mortgage over the property. It was proposed by the first appellant that the money would then be on lent to him. In the result, the second appellant executed the following documents on or about 21 October 2004:

(a)A form of acceptance, dated 29 September 2004, in respect of the offer of a loan…

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.

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Details

AGLC: Gajic v Poyser [2007] VSCA 175
Case: [2007] VSCA 175
Decision Date: 30 August 2007

CaseChat Overview and Summary

The case of Gajic v Poyser involved a dispute between the plaintiff and the defendant concerning a default judgment that had been entered. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to enforce the default judgment against the defendant, who had failed to file a defence within the required time frame. The defendant subsequently applied to set aside the default judgment, arguing that there was a viable defence to the plaintiff's claim. The primary legal issue before the court was whether the defendant's application to set aside the default judgment should be considered, and if so, whether the court could assess the merits of the defendant's defence.

The court held that while it was not the function of the court to determine the merits of the claimed defence or to resolve factual disputes when considering an application to set aside a default judgment, it could consider the defendant's material to determine whether the defence had a real prospect of succeeding. The court found that the defendant's defence was plainly without merit and that the defendant had failed to provide any evidence or argument that would suggest otherwise. The court dismissed the defendant's application to set aside the default judgment, concluding that there was no valid reason to interfere with the judgment. The appeal was dismissed, and the default judgment remained in place.

Orders