Node Connect Pty Ltd v Foxcomm Australia Pty Ltd

[2020] NSWDC 945

District Court

New South Wales

Medium Neutral Citation:

Node Connect Pty Ltd v Foxcomm Australia Pty Ltd [2020] NSWDC 945

Hearing dates:

8 October 2020

Date of orders:

9 October 2020

Decision date:

09 October 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Notice of motion filed 10 August 2020 dismissed.

(2)   Applicant/defendant to pay the costs of the application.

Catchwords:

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

Legislation Cited:

Civil Procedure Act 2005, s 56

Uniform Civil Procedure Rules 2005, r 36.16

Cases Cited:

Cosenza v Roy Morgan Interviewing Services Pty Ltd [2019] SASC 95

Cronauv Vavakis (No 3) [2018] NSWSC 1973

Dai v Zhu [2013] NSWCA 412

Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24

Magnate Projects Pty. Ltd. v. Youma Constructions (No.2) Pty. Ltd. [2005] NSWCA 331

National Australia Bank Limited v McCarthy [2014] NSWSC 1819

National Australia Bank v Priestley (No 3) [2012] NSWSC 1171

Reinehr Industrial Lease & Finance Pty Ltd v Jordan (Court of Appeal (NSW), 4 June 1974, unrep)

SharplesvNorthern Territory (1988) 91 FLR 11

Category:

Procedural rulings

Parties:

Node Connect Pty Ltd (plaintiff)
Foxcomm Australia Pty Ltd (defendant)

Representation:

Counsel:
Mr A Paterson (plaintiff)
Mr N Y H Li (defendant)

Solicitors:
Philip Tran Solicitors (plaintiff)
Unsworth Legal (defendant)

File Number(s):

2020/00130816

Publication restriction:

None

Judgment

1. Background

1. Node Connect Pty Ltd obtained default judgment against Foxcomm Australia Pty Ltd for $305,456.36 in respect of debts arising from a large number of invoices supplied by Node.  Foxcomm seeks to set aside the judgment.  There was no irregularity in the obtaining of the default judgment, but Foxcomm was served at an obsolete registered address that it had failed to amend with the corporate authorities.  It was accepted that Foxcomm had acted promptly when it became aware of the judgment, that it was previously unaware of the proceedings, and that any prejudice, by setting aside the default judgment, could largely be cured by a costs order. 

2. Issue

2. The determinative issue then was whether Foxcomm had established that it had a bona fide defence. If it does, so that there is a triable or arguable issue, then there is a proper basis for the unfettered discretion in r 36.16(2) of the Uniform Civil Procedure Rules 2005 to be exercised in its favour. ^[1] Although the Court is not to try issues of fact arising from the defence advanced, it nevertheless must be satisfied that the defence is “fairly arguable in law or fact" and that Foxcomm is “bona fide in seeking to rely upon that defence”. ^[2] The application of these principles is subject to the Civil Procedure Act 2005, including the overriding purpose of a cheap, quick and just resolution of the real issues in dispute as declared by s 56 of the Act. ^[3]  

   1. Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 at [43]-[44].

   2. Dunwoodie at [45], Reinehr Industrial…