Ghosh v GOLDSMITH

In *Ghosh v Goldsmith*, the applicant, Mr. Ghosh, sought to have a default judgment set aside, which had been entered against him in favour of the respondent, Ms. Goldsmith. The dispute arose from an alleged breach of contract, with Ms. Goldsmith claiming Mr. Ghosh had failed to pay for goods supplied. Mr. Ghosh contended that he had not been properly served with the originating process and therefore had no knowledge of the proceedings until after the default judgment was entered. The matter came before Judge Barnes in the District Court of New South Wales.

The primary legal issue before the court was whether the default judgment should be set aside. This required the court to consider the principles governing applications to set aside default judgments, particularly the applicant's obligation to demonstrate a meritorious defence to the claim. The court also had to determine whether service of the originating process had been effected in accordance with the relevant rules of court, and if not, whether that defect was so fundamental as to vitiate the proceedings.

Judge Barnes applied the well-established principles for setting aside default judgments, which generally require the applicant to show a defence on the merits and provide a reasonable explanation for the delay in responding to the proceedings. The court found that Mr. Ghosh had provided a sufficient explanation for his failure to respond, namely that he had not been properly served. Crucially, the court also found that the purported service was defective and did not comply with the rules, meaning Mr. Ghosh had not been given proper notice of the proceedings. Having found a meritorious defence and a lack of proper service, the court concluded that it was in the interests of justice to set aside the default judgment.

The court ordered that the default judgment be set aside, and that Mr. Ghosh be at liberty to file and serve a defence within 21 days.