Renwick Street Pty Limited v Parker

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:
E Peden SC and R Pietriche (Plaintiff)
F Ashworth (Defendant)

Solicitors:
Keith Bagley Lawyer (Plaintiff)
Just Defence Lawyers (Defendant)

File Number(s):

2017/00226139

Judgment

1. 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:

1. That a default judgment entered against the defendant in favour of the plaintiff in the proceedings on 17 November 2017 be set aside;

2. 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;

3. That enforcement of the default judgment be stayed pending determination of the relief sought in (a) and (b) above; and

4. Consequential relief.

The Affidavits read on the Motion

2. The applicant on the Motion, the defendant Mr Parker, read the following affidavits:

1. Affidavit of Seemab Awan sworn 8 July 2020; and

2. Affidavit of Seemab Awan sworn 24 August 2020.

3. The plaintiff read on the application the affidavit of Philip John Scahill affirmed 2 August 2020.

The Default Judgment

4. 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

5. 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.