Shaw v Leist (No 2)

Shaw (the applicant) sought to set aside a default judgment entered against him in favour of Leist (the respondent). The dispute arose from a loan agreement where the applicant allegedly defaulted on repayments. The applicant sought to have the default judgment, which had been entered by the respondent, set aside on the grounds that he had a meritorious defence to the claim and that there had been no proper service of the originating process. The matter came before Lucev J in the Supreme Court of Western Australia.

The primary legal issues before the Court were whether the applicant had demonstrated a meritorious defence to the respondent's claim for repayment of the loan, and whether the originating process had been validly served on the applicant in accordance with the rules of the Court. The Court was required to consider the applicant's explanation for his failure to respond to the originating process and the prejudice, if any, that would be caused to the respondent if the default judgment were set aside.

Lucev J considered the evidence presented by both parties regarding the loan agreement and the alleged default. His Honour noted that for a default judgment to be set aside, the applicant must show a defence that has real prospects of success. The applicant provided an affidavit detailing his defence, which related to alleged misrepresentations and breaches of contract by the respondent. His Honour also examined the evidence of service, including affidavits from the process server and the applicant's own evidence regarding his whereabouts. The Court applied the principles governing the setting aside of default judgments, balancing the applicant's right to have his defence heard against the respondent's right to have the judgment enforced.

The Court ultimately ordered that the default judgment be set aside, conditional upon the applicant paying the respondent's costs of the application and filing an appearance within a specified period. The applicant was also ordered to file and serve his defence within a further specified period.