KANAPATHY v In De Braekt (No.5)

In *Kanapathy v In De Braekt (No.5)*, the applicant, Mr. Kanapathy, sought to set aside a default judgment entered against him in favour of the respondent, Ms. In De Braekt. The dispute arose from an earlier proceeding where Mr. Kanapathy had failed to file a defence to Ms. In De Braekt's claim, leading to the entry of default judgment. The application to set aside this judgment was heard by Judge Cameron in the County Court of Victoria.

The primary legal issue before the court was whether Mr. Kanapathy had established sufficient grounds to warrant setting aside the default judgment. This required the court to consider whether Mr. Kanapathy had a meritorious defence to the original claim and whether he had provided a satisfactory explanation for his failure to file a defence within the prescribed time. The court also had to assess whether it was in the interests of justice to set aside the judgment, balancing the applicant's right to have his case heard against the respondent's right to the finality of litigation.

Judge Cameron applied the principles established in cases such as *Australian Coal and Coke Pty Ltd v. Federal Coke Co Pty Ltd* and *Commonwealth Bank of Australia v. Forshaw*. The court considered the two main limbs for setting aside a default judgment: first, the existence of a defence with real prospects of success, and second, a reasonable explanation for the delay. While acknowledging that Mr. Kanapathy had raised a defence, the court found his explanation for failing to file the defence to be unsatisfactory, noting a lack of diligence and a failure to engage with the legal process. The court also considered the prejudice to the respondent if the judgment were set aside.

Ultimately, Judge Cameron dismissed the application to set aside the default judgment. The court concluded that Mr. Kanapathy had not satisfied the necessary requirements for setting aside the judgment, particularly concerning the explanation for his default and the overall conduct of the proceedings.