J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood Group Realtors

The appeal concerned a dispute over unpaid commissions arising from a real estate agency agreement between J & M McNamee Holdings Pty Ltd (appellant) and Mungerie Vale Pty Ltd trading as Greenwood Group Realtors (respondent). The primary judge had refused to set aside a default judgment entered against the appellant. The appeal was heard by Gleeson and Brereton JJA and Simpson AJA.

The legal issues before the Court of Appeal were whether the primary judge erred in refusing to set aside the default judgment, considering the appellant's explanation for its failure to file a defence, the length of the delay, and any prejudice to the respondent. The Court also had to consider whether it was unjust to permit the respondent to retain the entirety of the default judgment, particularly as the respondent conceded that a portion of the judgment debt was not properly supported on the grounds argued below.

The Court of Appeal allowed the appeal, finding that while the appellant's explanation for the delay was not entirely satisfactory, the dictates of a just, quick, and cheap resolution of proceedings, coupled with the respondent's concession regarding the quantum of the judgment debt, meant that it was unjust to allow the respondent to retain the full default judgment. The Court varied the default judgment, reducing the amount from $215,805.54 to $90,966.75, and ordered that the appellant pay the respondent's costs of the motion and the costs thrown away by reason of the variation. The appellant was also ordered to file its defence and cross-claim, and the enforcement of the judgment and costs orders were stayed until the determination of the proceedings in the District Court.