Nexus Access Pty Ltd v CH Pacific Resources Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Nexus Access Pty Ltd v CH Pacific Resources Pty Ltd [2025] NSWDC 140

Hearing dates:

15 April 2025

Date of orders:

24 April 2025

Decision date:

24 April 2025

Jurisdiction:

Civil

Before:

Andronos SC DCJ

Decision:

(1)   Direct the parties to liaise as to the orders required to give effect to these reasons and costs.

(2)   List the matter for mention on Tuesday, 6 May 2025 at 10am before Andronos SC DCJ.

Catchwords:

CIVIL PROCEDURE — Default judgment — Setting aside — Bona fide defence on merits

CIVIL PROCEDURE — Default judgment — Setting aside — Irregularly entered – Against good faith

Legislation Cited:

Civil Procedure Act2005 (NSW), s 124A

Corporations Act2001 (Cth), s 109X

Uniform Civil Procedure Rules 2005, r 16.6, r 16.7, r 36.15, r 36.16

Cases Cited:

Arnold v Forsythe [2012] NSWCA 18

Dai v Zhu [2013] NSWCA 412

Goater v Commonwealth Bank of Australia (2014) 88 NSWLR 362

Pham v Gall [2020] NSWCA 116

Stephens and Anor v Glega Pty Limited trading as Robinia Homes and Anor [2022] NSWSC 120

Category:

Consequential orders

Parties:

Nexus Access Pty Ltd (plaintiff/respondent)
CH Pacific Resources Pty Ltd (defendant/applicant)

Representation:

Counsel:
Mr T Cleary (plaintiff/respondent)
Mr M McGirr (defendant/applicant)

Solicitors:
PCL Lawyers (plaintiff/respondent)
Murdock Cheng Legal Practice Pty Ltd (defendant/applicant)

File Number(s):

2023/00007891

Publication restriction:

Nil

JUDGMENT

1. On 16 August 2023 the plaintiff, Nexus Access Pty Ltd (Nexus), obtained default judgment against the defendant, CH Pacific Resources Pty Ltd (CPR), on its Amended Statement of Claim (ASoC) in the sum of $100,234.59. By notice of motion filed 21 February 2025, CPR seeks to set aside that judgment and to set aside a number of consequential orders. The orders sought to be set aside include a garnishee order and CPR seeks the return of $74,488.25 garnisheed from its bank account on 31 August 2023.

2. CPR says the default judgment ought be set aside under r 36.15 of the Uniform Civil Procedure Rules 2005 (UCPR) on the basis that it was irregularly obtained or was obtained against good faith. Alternatively, CPR says that default judgment ought be set aside under r 36.16 UCPR on the basis that it was a judgment obtained in CPR’s absence and, as a matter of discretion, CPR ought be permitted to defend the claim.

3. Nexus says that neither ground is made out and, in any event, it would be prejudiced by default judgment being set aside some two and a half years after the order was made and the garnishee order was executed, such that the balance of discretionary factors do not favour the making of the order.

4. CPR relies on the affidavit of its solicitor, Damin Murdock, affirmed 21 February 2025, and of its directors, Tianjin Hu, affirmed 20 February 2025, and Leo Wu, affirmed 21 February 2025. A large volume of material, comprising what appears to be the entire procedural history and evidence of related proceedings between the parties (the 2024 proceedings) was also tendered,…