McMahon v Wilson Curry Pty Ltd

McMahon (the applicant) sought to have a default judgment entered against Wilson Curry Pty Ltd (the respondent) set aside. The dispute arose from an alleged breach of a building contract, with the applicant claiming the respondent failed to complete works to a satisfactory standard and in a timely manner. The application to set aside the default judgment was heard by Judge Whelan in the County Court of Victoria.

The primary legal issue before the court was whether the applicant had established sufficient grounds to set aside the default judgment. This required the court to consider whether the applicant had a meritorious defence to the original claim and whether there was a good reason for the delay in filing a defence. 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 their case heard against the respondent's right to finality.

Judge Whelan applied the principles established in cases such as *Commonwealth Bank of Australia v. Friedrich* and *Sali v. Spiteri*. The court noted that a party seeking to set aside a default judgment must demonstrate both a defence with real prospects of success and a reasonable explanation for the failure to file a defence within the prescribed time. In this instance, the applicant's explanation for the delay, relating to difficulties in obtaining legal advice and the complexity of the building dispute, was found to be insufficient. Furthermore, the court found that the defence raised by the applicant lacked sufficient particularity and did not demonstrate a strong prospect of success.

Consequently, Judge Whelan dismissed the application to set aside the default judgment. The court ordered that the default judgment previously entered against the respondent stand.