Jones v Riley

[2022] NSWDC 323

District Court

New South Wales

Medium Neutral Citation:

Jones v Riley [2022] NSWDC 323

Hearing dates:

4 August 2022 (with supplementary submissions from both parties on 5 August 2022)

Date of orders:

9 August 2022

Decision date:

09 August 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 82

Catchwords:

CIVIL PROCEDURE – application to set aside default judgment – whether bona fide arguable defence – adequacy of explanation for default – significance of delay

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56 – 60

Evidence Act 1995 (NSW) s 136

Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Cases Cited:

Dai v Zhu [2013] NSWCA 412

Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230

J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood Group Realtors [2019] NSWCA 283

Pham v Gall [2020] NSWCA 116

R T & Co Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168

Category:

Principal judgment

Parties:

Mr M Riley (applicant)
Ms A Jones (respondent)

Representation:

Mr L Shohmelian for the applicant
Ms N Bailey for the respondent

File Number(s):

2019/00340904

Publication restriction:

Nil

JUDGMENT

Background

1. Before the Court is an application to set aside a default judgment entered on 27 April 2020.

2. This proceeding commenced on 30 October 2019. Alyce Jones, a judgment creditor and respondent to the current application, sued the judgment debtor and applicant on the motion, Michael Riley on an oral loan agreement said to be entered into on 9 November 2017. A ‘Loan Deed’ was said to have been executed on that day and Ms Jones pleaded essential terms of the loan reflecting what was contained in the Loan Deed. Ms Jones alleged that the loan was for a principal sum of $150,000, that it was an interest-free loan and repayable in fortnightly instalments of $380, commencing on the first fortnight after the ‘principal sum’ was advanced, until the principal sum was repaid. She alleged that this was to be disbursed through paying $100,000 to him whilst retaining $50,000 for “her own purposes”. As to the term for repayment it was to be paid advanced through the month of November 2017 and was repayable in fortnightly instalments; but no repayments had been made since 3 July 2019.

3. Although at the hearing of the present application the applicant disputed this, Ms Jones persuaded the Registrar who determined the application for default judgment that Mr Riley was personally served with the originating process on 16 March 2020.

4. After default judgment was entered, in June 2020, the respondent retrieved a sum of money from the applicant’s bank account pursuant to a garnishee order issued to the ANZ Bank.

5. On 23 April 2021, the Court made an Examination Order against the applicant, but there were problems with the service of that order. Since then, there were various adjournments of his examination.

6. On 11 May 2022, the respondent caused a bankruptcy notice to be issued against the applicant.

7. On 3 June 2022, the…