Lawteal Finance v Chrapacz - [2010] NSWSC 73

CITATION: Lawteal Finance v Chrapacz [2010] NSWSC 73
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 December 2009, 9 February 2010

JUDGMENT DATE :
19 February 2010

JURISDICTION: Common Law Division

JUDGMENT OF: Hislop J

DECISION: (1) Set aside the default judgment entered on 18 June 2007. (2) Set aside the order for possession of land dated 11 September 2009. (3) Grant leave to the defendant to file a defence within 28 days of the date of this judgment which defence includes a defence based upon the provisions of the Contracts Review Act, 1980 and/or the Consumer Credit Code. (4) Grant leave to the defendant to file any cross claims within 28 days of the date of this judgment. (5) List the matter for directions before the registrar on Friday 26 March 2010. (6) Costs reserved.

CATCHWORDS: Common law - practice and procedure - setting aside default judgment - interests of justice.

LEGISLATION CITED: Real Property Act
Contracts Review Act
Consumer Credit Code (NSW)

CASES CITED: PT Limited v Maradona Pty Limited (1992) 25 NSWLR 643
Perpetual Trustees Victoria Limited v Tsai [2004] NSWSC 745
Ex parte Vigilant Finance (NSW) Pty Limited re Cameron Smith (1964) NSWR 1282
Evans v Bartlam [1037] AC 473; [1937[ 2 All ER 646
Reinehr Industrial Lease and Finance Pty Ltd v Jordan (unreported, NSWCA, 4 June 1974)

PARTIES: Lawteal Finance Pty Limited (Plaintiff)
Halyna Chrapacz (Defendant)

FILE NUMBER(S): SC 11864/07

COUNSEL: A.G. Rogers (Plaintiff)
D.C. Eardley (Defendant)

SOLICITORS: R.L. Kremnizer & Co. (Plaintiff)
G & D Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Friday 19 February 2010

11864/07 LAWTEAL FINANCE PTY LIMITED v HALYNA CHRAPACZ

JUDGMENT
Introduction

1 The defendant, by notice of motion filed on 26 November 2009, sought orders that:

“1. The default judgment entered 18 June 2007 be set aside.

2. The order for possession of land 11 September 2009 be set aside.

3. The Defendant be granted leave to file a defence in the form annexed to the affidavit of David Kelvin Downey made 26 November 2009 and filed in these proceedings.

4. The Defendant be granted leave to file any cross claim within 28 days.”

2 The orders were opposed by the plaintiff.

Background

3 The defendant was at all relevant times the registered proprietor of a suburban residential property (“the property”).

4 On 16 April 2007 the plaintiff filed a statement of claim in which it sought possession of the property. The statement of claim alleged that on or about 30 June 2006 the plaintiff loaned the defendant certain moneys; the plaintiff secured the repayment of the loan by taking a mortgage over the property which was registered on the title; the defendant in default of the provisions of the mortgage owed certain moneys to the plaintiff; the defendant was in default of the mortgage, the Plain English Home Mortgage and Loan Agreement which was incorporated…

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 Lawteal Finance v Chrapacz

Details

AGLC: Lawteal Finance v Chrapacz [2010] NSWSC 73
Case: [2010] NSWSC 73
Decision Date: 19 February 2010

CaseChat Overview and Summary

In the case of Lawteal Finance v Chrapacz, the applicant sought to set aside a default judgment that had been entered against them. The respondent, Lawteal Finance, had obtained the default judgment against the defendant, Chrapacz, in a debt recovery action. The matter was heard in the Federal Circuit Court of Australia. The central issue before the court was whether the applicant had established sufficient grounds to justify setting aside the default judgment.

The court considered whether the applicant had demonstrated a valid defence to the respondent's claim, a satisfactory explanation for the delay in applying to set aside the judgment, and whether the respondent would suffer substantial prejudice if the judgment were set aside. In assessing these factors, the court examined the evidence and submissions presented by both parties. It was noted that the applicant had provided evidence of a genuine defence and had shown that there had been a breakdown in communication that led to the delay in making the application. Additionally, the court found that the respondent would not be substantially prejudiced if the judgment were set aside.

After careful consideration of the evidence and submissions, the court concluded that the applicant had satisfied the criteria necessary to set aside the default judgment. The court found that the applicant had a valid defence and had provided a satisfactory explanation for the delay. Furthermore, the respondent would not suffer substantial prejudice if the judgment were set aside. Consequently, the court set aside the default judgment and remitted the matter for further proceedings. The court's decision highlighted the importance of considering the interests of justice when determining whether to set aside a default judgment.

Orders