Grosche v Ducie; Badran v Saman - [2019] NSWLC 6

Local Court

New South Wales

Medium Neutral Citation: Grosche v Ducie; Badran v Saman [2019] NSWLC 6
Hearing dates: 8 March 2019
Date of orders: 08 March 2019
Decision date: 08 March 2019
Jurisdiction: Civil
Before: Magistrate S McIntyre
Decision:
Default judgement set aside

Catchwords:
CIVIL PROCEDURE – Default judgement – setting aside
CIVIL PROCEDURE – Pleadings - Loss of use - irregular pleadings – timing of service
Legislation Cited: Interpretation Act 1987 (NSW) s 76
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) rr 10.1, 10.20, 14.13, 16.6, 36.15
Cases Cited: Arnold v Forsyth [2012] NSWCA 18
Fenanto v Chief Commissioner of State Revenue (2010) 78 NSWLR 20
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206
Johnsen v Duks (1962) 80 WN NSW 272
Ken Tugrul v Tarrants Finance Consultants Limited (No 5) [2014] NSWSC 437
Category: Procedural and other rulings
Parties:
Applicants on NOM: Amos Grosche and Sule Sarman
Respondents on NOM: Rachel Ducie and Eman Badran
Representation: Mr K G Oliver for both Applicants on Notice of Motion
Solicitors: William Roberts Lawyers
Mr W Richey for both Respondents on Notice of Motion
Solicitors: Martin P Board and Associates

File Number(s): 2018/00316714; 2018/00244653
Publication restriction: Nil

Judgment

Mr Grosche is the applicant on the notice of motion (NOM) and the defendant in the default judgment. The NOM prayed, via a number of grounds, for the Court to set aside the default judgment which was entered on 22 November 2018 in the amount of $2,639.12.
As has been submitted, particularly by the respondent, these are matters that ultimately revolve around default judgments entered in the Small Claims Division, for (in the whole scheme of things) fairly minor amounts of money. It is in my view however an issue that has been worthy of consideration by this Court - given the amount of resources that are expended across all jurisdictions in relation to motor vehicle accident claims and particularly replacement/car hire vehicle issues.
The Court has looked closely at the way the pleadings have been prepared in these matters, and has had cause to focus on the conduct of the parties involved, particularly in relation to their filing of claims and motions on-line, and how it is that these default judgments are obtained so expeditiously.

In the matter of Grosche v Ducie

Should the NOM be granted, the applicant seeks leave to file the defence and seeks costs on the NOM.
The default judgment was entered on 22 November 2018 for the sum of $2,639.12.
The subject of these proceedings is a motor vehicle collision between the vehicle driven by the plaintiff and the vehicle driven by the defendant that occurred on 22 May 2018.
I have taken from the chronology supplied by the applicant the following points –

On 17 October 2018 the plaintiff / respondent on this motion filed her statement of claim in these proceedings.

On 22 November 2018 Mr Germain, acting for the defendant,…

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 Grosche v Ducie; Badran v Saman

Details

AGLC: Grosche v Ducie; Badran v Saman [2019] NSWLC 6
Case: [2019] NSWLC 6
Decision Date: 08 March 2019

CaseChat Overview and Summary

In Grosche v Ducie and Badran v Saman, the applicants sought to set aside a default judgment obtained against them. The applications were brought under Order 17 of the Uniform Civil Procedure Rules 2005 (NSW). The applicants argued that the default judgment should be set aside due to procedural irregularities and an alleged failure to serve the necessary documents within the required timeframe. The court had to decide whether the applicants had demonstrated a sufficient ground to justify setting aside the default judgment, considering the timing of service and the irregularity of the pleadings.

The court examined whether the applicants had a bona fide defence to the claims made by the respondents. It considered the merits of the applicants' arguments regarding the procedural issues and whether these issues were significant enough to warrant setting aside the default judgment. The applicants contended that the respondents had failed to serve the necessary documents within the required timeframe, which was a critical procedural requirement. Additionally, the applicants argued that the pleadings were irregular, which might have contributed to the failure to respond to the claims.

The court found that the applicants had demonstrated a valid ground for setting aside the default judgment. It held that the procedural irregularities and the failure to serve the necessary documents within the required timeframe were significant enough to warrant setting aside the judgment. The court was satisfied that the applicants had a bona fide defence and that there was a real prospect of success if the proceedings were allowed to proceed. Consequently, the court set aside the default judgment and ordered that the matter proceed to a substantive hearing.

The court ordered that the default judgment obtained against the applicants be set aside. The matter was directed to proceed to a substantive hearing to determine the merits of the claims and defences. The applicants were granted leave to amend their pleadings to regularise the proceedings. The court emphasised the importance of strict compliance with procedural requirements to ensure that all parties have a fair opportunity to present their cases.

Orders

Orders of the court

Default judgement set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Grosche v Ducie; Badran v Saman [2019] NSWLC 6
Hearing dates:	8 March 2019
Date of orders:	08 March 2019
Decision date:	08 March 2019
Jurisdiction:	Civil
Before:	Magistrate S McIntyre
Decision:	Default judgement set aside
Catchwords:	CIVIL PROCEDURE – Default judgement – setting aside CIVIL PROCEDURE – Pleadings - Loss of use - irregular pleadings – timing of service
Legislation Cited:	Interpretation Act 1987 (NSW) s 76 Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW) rr 10.1, 10.20, 14.13, 16.6, 36.15
Cases Cited:	Arnold v Forsyth [2012] NSWCA 18 Fenanto v Chief Commissioner of State Revenue (2010) 78 NSWLR 20 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206 Johnsen v Duks (1962) 80 WN NSW 272 Ken Tugrul v Tarrants Finance Consultants Limited (No 5) [2014] NSWSC 437
Category:	Procedural and other rulings
Parties:	Applicants on NOM: Amos Grosche and Sule Sarman Respondents on NOM: Rachel Ducie and Eman Badran
Representation:	Mr K G Oliver for both Applicants on Notice of Motion Solicitors: William Roberts Lawyers Mr W Richey for both Respondents on Notice of Motion Solicitors: Martin P Board and Associates
File Number(s):	2018/00316714; 2018/00244653
Publication restriction:	Nil