District Court
New South Wales
Medium Neutral Citation: Wellbe Properties Pty Ltd v Walter Projects Pty Ltd & Anor [2021] NSWDC 252 Hearing dates: 1 and 7 June 2021 Date of orders: 16 June 2021 Decision date: 16 June 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders:
(1) Default judgment entered on or about 27 May 2021 against the first and second defendants set aside pursuant to UCPR r 36.15.
(2) The defendants have leave to rely upon the defence filed in court on 7 June 2021, which is deemed to be their defence in these proceedings.
(3) Dispense with any requirement for further filing of the defence or for service of the defence.
(4) The plaintiff pay the defendants’ costs of the motion.
(5) The defendants’ application for the costs of the motion to be payable forthwith is refused.
(6) Garnishee orders against the defendants directed to the National Australia Bank made on 31 May 2021 set aside.
(7) Costs of enforcement of the judgment by way of garnishee order to be the parties’ costs in the cause.
(8) These proceedings listed for further directions before the Judicial Registrar on 9 July 2021.
Catchwords: PRACTICE AND PROCEDURE – application to set aside judgment
Legislation Cited: Australian Consumer Law section 18
Uniform Civil Procedure Rule 2005 (NSW) rr 6.3, 16.2, 16.3(1A), 16.7, 36.15 and 42.7
Cases Cited: AE Consulting Pty Ltd v Online Valuations Pty Ltd [2012] NSWSC 1300
Alexander v Ajax Insurance Co Ltd [1956] VLR 436
BOSI Services Ltd v Wright [2013] WASC 431
Commonwealth Bank of Australia v Humphreys [2010] NSWSC 581
Commonwealth Bank of Australia v Wales [2012] NSWSC 407
Evans v Bartlam [1937] AC 473; [1937] 2 All ER 646; 53 TLR 689
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
French v Triple M Melbourne Pty Ltd [2006] VSC 36
Hamafam Pty Ltd v Saadullah [2007] NSWSC 818
Jender Pty Ltd v Flood Emergency Services Group Pty Ltd & Anor [2021] VSC 212
Josa Constructions Pty Ltd v Amarino Pty Ltd [2016] NSWDC 306
Kids Club Rozelle Pty Ltd v European Hire Cars Pty Ltd [2018] NSWSC 1115
Lawteal Finance v Chrapacz [2010] NSWSC 73
Logos v Grunwaldt [1910] 1 KB 41
Magnate Projects Pty. Ltd. v. Youma Constructions (No.2) Pty. Ltd. [2005] NSWCA 331
McMillan Investment Holdings Pty Ltd v Mangos [2021] NSWSC 37
National Australia Bank Ltd v McCann [2010] NSWSC 766
Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216
Pope v Aberdeen Transport Co Pty Ltd [1965] NSW R 1550
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Vimblue Pty Ltd v Toweel t/as Carpenters Core Building [2009] NSWSC 494
Texts Cited: Ritchie’s Uniform Civil Procedure New South Wales
Category: Procedural rulings Parties: Plaintiff/respondent to the Motion
Wellbe Properties Pty Ltd
Defendants/Applicants to the Motion
1st Defendant: Walter Projects Pty Limited
2nd Defendant: Christopher Peter RoseRepresentation: Counsel:
Plaintiff/respondent to the Motion
Mr M Klooster
Defendants/Applicants to…
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- Case
- [2021] NSWDC 252
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendants' application to set aside the default judgment and associated garnishee orders should be granted. The court was required to consider the defendants' defence, the timeliness of their application, and whether there was a sufficient basis to justify setting aside the default judgment.
The court found that the defendants had filed their defence within the requisite time frame and provided a credible explanation for their delay, which was deemed sufficient to warrant the setting aside of the default judgment. The court held that the defendants had demonstrated a valid defence on the merits and that there were no grounds to refuse their application. Consequently, the court set aside the default judgment and the garnishee orders, and allowed the defendants to rely on their defence. Additionally, the court ordered the plaintiff to bear the costs of the motion and directed that the costs of enforcement of the judgment be borne by both parties.
The final orders included the setting aside of the default judgment and garnishee orders, permission for the defendants to rely on their filed defence, and the allocation of costs between the parties. The proceedings were subsequently listed for further directions before the Judicial Registrar.
Orders
Orders of the court
Orders:
(1) Default judgment entered on or about 27 May 2021 against the first and second defendants set aside pursuant to UCPR r 36.15.
(2) The defendants have leave to rely upon the defence filed in court on 7 June 2021, which is deemed to be their defence in these proceedings.
(3) Dispense with any requirement for further filing of the defence or for service of the defence.
(4) The plaintiff pay the defendants’ costs of the motion.
(5) The defendants’ application for the costs of the motion to be payable forthwith is refused.
(6) Garnishee orders against the defendants directed to the National Australia Bank made on 31 May 2021 set aside.
(7) Costs of enforcement of the judgment by way of garnishee order to be the parties’ costs in the cause.
(8) These proceedings listed for further directions before the Judicial Registrar on 9 July 2021.
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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