Mace v Cavanagh - [2025] VSC 311

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 05333

BETWEEN:

BEVERLEY JOYCE FRANCES MACE	Plaintiff
v
MARGARET CATHERINE CAVANAGH	First Defendant
- and -
MARK ALBERT MAIER (in his capacity as Administrator with the Will annexed of the Estate of the Marshall Raymond Mace, deceased)	Second Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2025
DATE OF RULING:	4 June 2025
CASE MAY BE CITED AS:	Mace v Cavanagh & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 311

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PRACTICE AND PROCEDURE – Setting aside judgment obtained in default of defence – Whether default judgment irregularly entered – Whether plaintiff had proved default in service of defence as required by r 21.02(2) of the Supreme Court (General Civil Procedure) Rules 2015 – Whether error in interlocutory judgment as to how it was obtained was an irregularity warranting set aside – Whether arguable defence on the merits – Factors relevant to discretion to set aside regularly entered judgment in default – r 21.07 of the Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R G Morison of counsel	Gauld & Co
For the First Defendant	Mr G McCormick of counsel	Goldsmiths Lawyers
For the Second Defendant	Mr K Mihaly of counsel	McNab McNab & Starke

TABLE OF CONTENTS

Background

Setting aside the default judgment

Was the default judgment irregularly entered?
Would the default judgment be set aside if it had been regularly entered?
Does the first defendant have a reasonably arguable defence on the merits?
What explanation is given for the default?
Did the first defendant unreasonably delay in making the set aside application?
Is the plaintiff prejudiced in a way that cannot be compensated by an award of costs?

Summary judgment

Disposition

HER HONOUR:

By summons dated 20 December 2024, the first defendant seeks orders pursuant to r 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) to set aside judgment in default of defence entered on 2 March 2023.
During the course of the hearing, the plaintiff made application orally, without filing any summons, for summary judgment.
For the reasons that follow, I will set aside the default judgment on the basis that it was irregularly entered. Even if it was regularly entered, I would set aside the default judgment in the exercise of the discretion under r 21.07 of the Rules. I will dismiss the application for summary judgment.

Background

The plaintiff commenced this proceeding by writ and statement of claim filed on 22 December 2022.
In his affidavit sworn on 28 February 2023 to prove default in service of defence, Mr Peter Gauld of Gauld & Co, solicitors for the plaintiff, deposed to the effect that the statement of claim had been served on the first defendant on 5 January 2023.[1] In giving this evidence, Mr Gauld relied upon an ‘affidavit of service of Peter Petrovich sworn 6…

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 Mace v Cavanagh

Details

AGLC: Mace v Cavanagh [2025] VSC 311
Case: [2025] VSC 311
Decision Date: 4 June 2025

CaseChat Overview and Summary

The case of Mace v Cavanagh involves a plaintiff who obtained a default judgment against the defendant, Cavanagh, for the recovery of a debt. The defendant subsequently applied to set aside the default judgment on various grounds. The matter was heard in the Supreme Court of Queensland. The defendant argued that the default judgment was irregularly entered because the plaintiff had not proven that the defendant had failed to serve a defence within the time allowed, as required by rule 21.02(2) of the Supreme Court (General Civil Procedure) Rules 2015. The defendant also argued that there was an error in the interlocutory judgment regarding the method by which it was obtained, which was an irregularity warranting the setting aside of the judgment. Furthermore, the defendant contended that there was an arguable defence on the merits of the case.

The court considered whether the plaintiff had proven that the defendant had defaulted in serving a defence within the required time frame. The court also examined whether the error in the interlocutory judgment constituted an irregularity warranting the setting aside of the default judgment. The court further considered the factors relevant to the exercise of the discretion to set aside a regularly entered judgment in default, as outlined in rule 21.07 of the Supreme Court (General Civil Procedure) Rules 2015. The court found that the plaintiff had not proven that the defendant had failed to serve a defence within the required time frame, and that the error in the interlocutory judgment was an irregularity warranting the setting aside of the judgment. The court also found that the defendant had an arguable defence on the merits of the case.

The court set aside the default judgment and ordered that the defendant's application to set aside the judgment be granted. The court further ordered that the matter be listed for further directions. The court held that the defendant's application to set aside the default judgment was well-founded, and that the factors relevant to the exercise of the discretion to set aside a regularly entered judgment in default supported the setting aside of the judgment. The court also held that the defendant had an arguable defence on the merits of the case, which was a relevant factor in the exercise of the court's discretion.

Orders