District Court
New South Wales
Medium Neutral Citation: Renwick Street Pty Limited v Parker [2020] NSWDC 552 Hearing dates: 17 September 2020 Date of orders: 22 September 2020 Decision date: 22 September 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: The Notice of Motion filed 8 July 2020 is dismissed
Catchwords: Civil procedure – default judgment – application to set aside – principles applicable – whether there is a bona fide defence on the merits which is fairly arguable – explanation for delay
Legislation Cited: Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Mei Zhang v Yee Cheng [2018] NSWDC 147
Mei Zhang v Yee Cheng [2018] NSWCA 299
Newell v De Costi [2018] NSWCA 49
Payne v Parker [1976] 1 NSWLR 191
Category: Procedural and other rulings Parties: Renwick Street Pty Limited (Plaintiff)
Anthony Robert Parker (Defendant)Representation: Counsel:
Solicitors:
E Peden SC and R Pietriche (Plaintiff)
F Ashworth (Defendant)
Keith Bagley Lawyer (Plaintiff)
Just Defence Lawyers (Defendant)
File Number(s): 2017/00226139
Judgment
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Before the court for determination is a Notice of Motion filed by the defendant on 8 July 2020. That Notice of Motion seeks orders to the following effect:
That a default judgment entered against the defendant in favour of the plaintiff in the proceedings on 17 November 2017 be set aside;
The writ for levy of property, an order for the issue of which was made on the application of the plaintiff on 29 November 2019, be set aside;
That enforcement of the default judgment be stayed pending determination of the relief sought in (a) and (b) above; and
Consequential relief.
The Affidavits read on the Motion
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The applicant on the Motion, the defendant Mr Parker, read the following affidavits:
Affidavit of Seemab Awan sworn 8 July 2020; and
Affidavit of Seemab Awan sworn 24 August 2020.
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The plaintiff read on the application the affidavit of Philip John Scahill affirmed 2 August 2020.
The Default Judgment
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The default judgment in question was made by the court on 9 November 2017 in favour of the plaintiff against the defendant in the sum of $517,729.99 inclusive of costs.
Background facts
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The Statement of Claim was filed in the proceedings on 25 July 2017 by the plaintiff, Renwick Street Pty Ltd. Paragraphs 2-8 of the Statement of Claim provide as follows:
“2. The defendant is the registered proprietor of real property known as XXXXX Road, Wedderburn being the whole of the land in Folio Identifier XXXXX (the Land).
3. On or about February 2014, the plaintiff agreed with the defendant to do all things reasonably necessary to design, supervise and temporarily fund construction of a residential dwelling on the Land for reward (the Agreement).
4. In consideration of the Agreement, the defendant agreed to reimburse the plaintiff for monies the plaintiff expended on a request for payment basis plus a supervisory fee comprising thirty per cent (30%) of construction costs incurred by the plaintiff.
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- Case
- [2020] NSWDC 552
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the defendant had a bona fide defence on the merits which was fairly arguable and whether the delay in making the application was satisfactorily explained. The court considered the principles applicable to such applications, including the need for a credible and plausible defence, and the need for a satisfactory explanation for the delay. The court also considered the seriousness of the default and the degree of prejudice to the plaintiff if the judgment were set aside.
The court found that the defendant's defence was not credible or plausible and did not amount to a bona fide defence on the merits. The court also found that the delay in making the application was not satisfactorily explained. The court held that the defendant had failed to discharge the onus of establishing a sufficient case for setting aside the default judgment. Accordingly, the application to set aside the default judgment was dismissed.
Orders
Orders of the court
The Notice of Motion filed 8 July 2020 is dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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