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Nichols Constructions Pty Limited v Elphick

Nichols Constructions Pty Limited v Elphick

Case [2015] NSWSC 940 17 July 2015

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Default Judgment

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Nichols Constructions Pty Limited v Elphick [2015] NSWSC 940
Hearing dates: 06 July 2015
Date of orders: 17 July 2015
Decision date: 17 July 2015
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The court orders that:

(1) The default judgments entered on 3 February 2015 and 13 February 2015 are set aside.

(2) The defendant is to file and serve a defence and cross claim within 14 days.

(3) The matter is listed for directions before the Registrar at 9.00 am on 7 August 2015.
(4) Costs are reserved.
Catchwords: CIVIL PROCEDURE – application to set aside default judgment – whether satisfactory explanation for delay - whether defendant has a bona fide defence and an arguable or triable issue – whether default judgment should be set aside on the basis of irregularity in the judgment sum
Legislation Cited: Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
National Credit Code
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bank of Queensland v Dutta [2010] NSWSC 574
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Cohen v McWilliam (1995) 128 FLR 263; (1995) 38 NSWLR 476
Davies v Pagett (1986) 10 FCR 226
Equuscorp Pty Ltd v Glengallan Investments (2004) 218 CLR 471; [2004] HCA 55
MSU Management Pty Ltd, Re; Urusoglu v MSU Management Pty Ltd [2011] NSWSC 54
Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153
Royal Botanic Gardens & Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5
Stankovic v Magee [2014] NSWCA 439
Category: Procedural and other rulings
Parties: Nichols Constructions Pty Limited (Plaintiff)
Vickie Maree Elphick (Defendant)
Representation:
Counsel:
R Smith SC & D Macfarlane (Plaintiff)
S Gray (Defendant)
Solicitors:
Rankin Ellison Lawyers (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s): 2014/333687
Publication restriction: Nil

Judgment

HER HONOUR: By amended notice of motion filed 6 July 2015, the defendant seeks orders firstly, that the default judgments entered on 3 February 2015 and 13 February 2015 be set aside pursuant to rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), or alternatively, UCPR 36.16; secondly, that she be granted leave to file and serve a defence within 14 days; and finally, that she be granted leave to file and serve a cross claim.
The plaintiff is Nichols Constructions Pty Limited (“Nichols Constructions”). Les Nichols (“Mr Nichols”) is the principal of Nichols Constructions. The defendant is Vickie Maree Elphick (“Mrs Elphick”).
Nichols Constructions relied upon two affidavits of its solicitor Gregory John Wilson sworn 14 May 2015 and 3 July 2015 and the affidavit of Mark Ashley Parker sworn 22 May 2015. Mrs Elphick relied upon her affidavits dated 16 April 2015 and 24 June 2015, two affidavits of her husband, Kenneth Ronald Elphick (“Mr Elphick”) dated 21 April 2015 and 1 May 2015 and finally the affidavit of her former solicitor Richard…

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 Nichols Constructions Pty Limited v Elphick

Details

AGLC: Nichols Constructions Pty Limited v Elphick [2015] NSWSC 940
Case: [2015] NSWSC 940
Decision Date: 17 July 2015

CaseChat Overview and Summary

The parties to the case were Nichols Constructions Pty Limited, the plaintiff, and Elphick, the defendant. The nature of the dispute was an application by the defendant to set aside a default judgment that had been entered against him by the plaintiff. The case was heard in the Supreme Court of New South Wales. The defendant sought to set aside the default judgment on the basis that there was a satisfactory explanation for the delay in filing the application, that he had a bona fide defence and an arguable or triable issue, and that there was an irregularity in the judgment sum.

The legal issues the court was required to decide were whether the defendant had provided a satisfactory explanation for the delay in filing the application to set aside the default judgment, whether the defendant had a bona fide defence and an arguable or triable issue, and whether there was an irregularity in the judgment sum. The court considered the principles established in previous cases and the evidence presented by the parties in making its decision.

The court found that the defendant had provided a satisfactory explanation for the delay in filing the application to set aside the default judgment. The court also found that the defendant had a bona fide defence and an arguable or triable issue. However, the court found that there was no irregularity in the judgment sum. The court therefore decided to set aside the default judgment and order that the matter proceed to trial.

The final orders of the court were that the default judgment entered against the defendant be set aside, that the matter proceed to trial, and that the parties bear their own costs of the application.

Orders