Poyser v Gajic - [2006] VSC 380

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5016 of 2006

MAXWELL ANDREW POYSER	Plaintiff
v
MALOJKO GAJIC	First Defendant
and
MILEVA GAJIC	Second Defendant

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JUDGE:	Morris J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2006
DATE OF JUDGMENT:	20 October 2006
CASE MAY BE CITED AS:	Poyser v Gajic
MEDIUM NEUTRAL CITATION:	[2006] VSC 380

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Application to set aside judgment in default – Judicial discretion in setting aside default judgment – Default on loan repayment – Plaintiff failed to file defence – Plaintiff alleged agreement existed to extend loan - Warrant of possession – Whether defence had merit

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Farrands	Wainwrights Pty Ltd
For the Defendants	Mr J M Selimi	Radebe and Associates

HIS HONOUR:

On 7 March 2006 the plaintiff issued a writ in which it sought possession of land at 36 Curlew Point Drive, Patterson Lakes as a consequence of the defendants’ failing to repay money owed pursuant to a loan. Although the defendants filed an appearance in the matter, they did not serve a defence. Consequently on 11 May 2006 default judgment was entered in favour of the plaintiff and it was ordered that the plaintiff be entitled to recover possession of the land, together with the sum of $2,290.

The defendants then applied to a Master of this Court to set aside the default judgment. This was supported by an affidavit of the first defendant, sworn 15 June 2006, in which he stated that he did not file a defence because he was involved in negotiations with the plaintiff to settle the debt and that he was made to understand that the plaintiff was not going to take further action in relation to the proceeding.

On 7 July 2006 Gillard J ordered that the execution of the warrant in respect of the land be stayed until further order.

On 9 August 2006 Senior Master Mahoney heard and dismissed the defendants’ application to set aside the default judgment. In taking this course Senior Master Mahoney noted:

“The Court regarded as compelling the failure of the first defendant to protest the plaintiff’s requirement of repayment of the loan on the due date by referring to the alleged agreement made at the time of the loan to “roll it over”; for an additional year and the faxes of the defendants’ solicitors dated 27 October 2005 and 23 November 2005 which not only did not refer to the alleged agreement but were inconsistent with its existence: see Eyota Pty Ltd v Hanove Pty Ltd 91994) 12 ACSR 785, at 787; 12 ACCC 669, at 671-2.”

The defendants have now appealed to a judge against the decision of the master made on 9 August 2006. (The notice of appeal wrongly states that the plaintiff is the appellant; but this is clearly an error and should be overlooked.)

An appeal from a master is to be reheard de novo.

The defendants…

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 Poyser v Gajic

Details

AGLC: Poyser v Gajic [2006] VSC 380
Case: [2006] VSC 380
Decision Date: 20 October 2006

CaseChat Overview and Summary

In the matter of Poyser v Gajic, the plaintiff sought to set aside a default judgment that had been entered against the defendant due to the defendant's failure to repay a loan. The dispute centred around a loan agreement between the parties, with the plaintiff claiming that the defendant had failed to make the agreed repayments. The defendant did not file a defence to the plaintiff's claim, resulting in the entry of a default judgment. The defendant subsequently applied to set aside the judgment, arguing that there was an agreement to extend the loan repayment terms and that this defence had merit.

The central legal issue before the court was whether the defendant's application to set aside the default judgment should be granted, and if so, under what circumstances. The court needed to consider the discretion it had in setting aside a default judgment and whether the defendant's proposed defence had a reasonable prospect of success. Additionally, the court had to determine whether the defendant's delay in filing the application and the potential prejudice to the plaintiff warranted the exercise of discretion in favour of setting aside the judgment.

The court found that while the defendant's proposed defence had some merit, the delay in filing the application to set aside the judgment and the potential prejudice to the plaintiff were significant factors to consider. The court held that the defendant had not demonstrated a sufficient explanation for the delay, and the plaintiff would suffer prejudice if the judgment were set aside. Consequently, the court exercised its discretion not to set aside the default judgment. The court also noted that the defendant's warrant of possession, which was a consequence of the default judgment, would remain in effect.

In conclusion, the court dismissed the defendant's application to set aside the default judgment. The court held that the defendant's proposed defence had some merit, but the delay in filing the application and the potential prejudice to the plaintiff outweighed any merit in the defence. The default judgment and the warrant of possession would remain in effect.

Orders