Kenoss Pty Ltd v Palerang Council

Kenoss Pty Ltd (the applicant) sought to set aside a default judgment entered against it in favour of Palerang Council (the respondent). The applicant had previously been represented by solicitors who, shortly before a hearing, withdrew their representation. The applicant then sought an adjournment of the hearing to obtain further legal advice.

The primary legal issue before the Court of Appeal was whether the primary judge erred in refusing the applicant's application for an adjournment and subsequently dismissing its application to set aside the default judgment. This involved considering the principles governing the grant or refusal of adjournments, particularly in circumstances where a party has recently lost legal representation, and the criteria for setting aside a default judgment under the Uniform Civil Procedure Rules 2005.

The Court of Appeal affirmed the principles that an adjournment is not a right but a matter of judicial discretion, to be exercised having regard to all the circumstances of the case. It noted that while the late withdrawal of legal representation is a significant factor, it does not automatically entitle a party to an adjournment. The Court found that the primary judge had properly considered the applicant's delay in seeking legal advice after the withdrawal of its solicitors and the lack of a satisfactory explanation for that delay. Furthermore, the Court was not satisfied that the applicant had demonstrated a meritorious defence to the respondent's claim, which is a necessary consideration when seeking to set aside a default judgment.

The Court of Appeal dismissed the applicant's Notice of Motion dated 5 June 2013, with costs.