Westpac Banking Corporation v Garrett

The case of Westpac Banking Corporation v Garrett involved a dispute where default judgment was entered against the defendants, including Mr Garrett in his personal capacity and as a trustee. The plaintiffs sought to set aside the default judgment on the grounds that it was entered irregularly. The key issues for the court were whether the judgment could be amended to correct the irregularity, and whether the requirement to endorse the representative capacity on the summons was necessary. The court found that while the inclusion of Mr Garrett as a trustee in the judgment was irregular, the failure to endorse the capacity as trustee on the summons was not. Furthermore, the defendants had foreshadowed a reasonably arguable defence on the merits. Consequently, the court exercised its discretion to set aside the default judgment to allow the defendants to defend the action.

The court examined the procedural aspects of the case, focusing on the nature of the irregularity in the judgment and the appropriate remedy. It noted that the entry of judgment against a defendant in their capacity as a trustee was an irregularity, as trustees generally act in a personal capacity rather than a representative one. However, the court found that the failure to specify the representative capacity on the summons did not constitute an irregularity. The court also considered the merits of the defence presented by the defendants, which included the argument that the trustee acted in a personal capacity. This argument was deemed reasonably arguable, influencing the court's decision to set aside the judgment.

In setting aside the default judgment, the court emphasised the importance of allowing the defendants to present their defence on the merits. The court recognised that the only identified prejudice to the plaintiffs was the potential for costs, which could be addressed by an order for costs. Therefore, setting aside the judgment was considered appropriate to ensure that the defendants could defend the action. The court's decision was based on the balance between correcting procedural irregularities and allowing a fair opportunity for the defendants to contest the claim.

The final orders of the court included setting aside the default judgment against the defendants, including Mr Garrett in his personal capacity and as a trustee. The court directed that the defendants be allowed to defend the action and that the matter proceed to trial. Additionally, the court considered making an order for costs in favour of the plaintiffs, but this was subject to the outcome of the defence. The setting aside of the judgment aimed to rectify the procedural irregularity and provide a fair opportunity for the defendants to address the plaintiffs' claims.