POWER & MACDONALD (Civil Disputes)

The application to set aside a default judgment was brought by Power, who was the respondent in the original proceedings, against MacDonald, the judgment creditor. The original proceedings related to a debt owed by Power to MacDonald, which resulted in a default judgment being entered against Power on 31 May 2011. The present application sought to set aside this judgment on the basis of Power's contention that it had a reasonable excuse for failing to respond to the proceedings, as well as to have the judgment debt paid by instalments. The application was heard in the Supreme Court of New South Wales, with Justice Brereton presiding.

The primary legal issue before the court was whether Power had a reasonable excuse for failing to respond to MacDonald's proceedings. In addition, the court had to determine whether the judgment debt could be paid by instalments. These issues were to be assessed based on the circumstances of the case, including the reasons provided by Power for its failure to respond, and the financial situation of both parties.

Justice Brereton held that Power had not provided a reasonable excuse for its failure to respond, as the reasons given were insufficient and did not adequately explain the delay. Furthermore, the judge found that there were no exceptional circumstances that warranted setting aside the default judgment. However, the judge noted that the question of whether the judgment debt could be paid by instalments was a matter that could be addressed in a separate application. Consequently, the application to set aside the default judgment was dismissed, but the court left open the possibility of a future application regarding the payment of the judgment debt by instalments.

In light of the above, the court dismissed the application to set aside the default judgment and made no orders regarding the payment of the judgment debt by instalments. However, the judge indicated that a new application could be made in relation to the payment of the judgment debt by instalments, subject to the court's discretion.