Westpac Banking Corporation v Michael Vincent Bourke - [2012] NSWSC 111

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Michael Vincent Bourke & Anor [2012] NSWSC 111
Hearing dates: 17/02/2012
Decision date: 17 February 2012
Jurisdiction: Equity Division - Commercial List
Before: Einstein J
Decision:
1. I dismiss the Notice of Motion dated 9 January 2012.
2. I direct that the defendants pay the plaintiff's costs of the Notice of Motion filed on 9 January 2012.

Catchwords: Application to set aside default judgment
Cases Cited: Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Gunns Ltd v Marr [2005] VSC 251
McGuirk v University of New South Wales [2009] NSWSC 1424
National Australia Bank v Menere [2010] NSWSC 381
North v Shierlaw (1897) 13 WN (NSW) 163
Northam v Favelle Favco Holdings Pty Ltd (Supreme Court of New South Wales, Bryson J, 7 March 1995, unreported)
Rosling v Ben Shemesh [1960] VR 173
Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278
Term Sales Pty Ltd v Jospeh (1949) 67 WN (NSW) 44
Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Wen Guo Jin v St George Bank Limited [2011] NSWSC 183
Category: Interlocutory applications
Parties: Westpac Banking Corporation ABN 33 007 457 141 (Plaintiff)
Michael Vincent Bourke (First Defendant)
Krystyna Mary Therese Bourke (Second Defendant)
Representation: Counsel:
Mr T D Tzovaras (solicitor for appellant/defendants)
Mr R Adams (solicitor for respondent/plaintiff)
Solicitors:
Henry David York (respondent/plaintiff)

File Number(s): 2010/00116759

Judgment

There is before the Court an application by the defendants to set aside a judgment entered for the plaintiff against the defendants on 31 August 2010.

There is no substance to the application.

In support of the motion the defendants relied upon the affidavit of Michael Vincent Burke sworn on 9 January 2012.

The application was pursued by Mr Tzovaras, a solicitor, who had not put on a notice of appearance.

Each of the plaintiff's submissions was of substance, and each is adopted. Those submissions were as follows:

(1) The plaintiff seeks to have the notice of motion filed by the defendants' on 9 January 2012 dismissed with costs.

(2) The plaintiff's case is a simple one, based on the defendants' obligation to pay the monies owing on facilities providing financial accommodation from the plaintiff for the defendants and a company they controlled.

(3) Whilst the defendants deny the relief sought by the plaintiff, they do not deny executing the facility documents pleaded and at no point in the proceedings have the defendants through their engaged solicitors or on their own behalves filed pleadings in response to the plaintiff's commercial list statement and commercial list summons.

(4) The defendants have not made any attempt to plead a basis by which it can be said that the vague facts asserted by the defendants have the result that the defendants are not liable under the facilities as pleaded by the plaintiff. The defendants do not identify any statutory provisions, or common law or equitable doctrine or remedy that supports the denial.

(5) The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 111
Decision Date: 17 February 2012

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard an application by Michael Vincent Bourke to set aside a default judgment entered against him by the Westpac Banking Corporation. The dispute arose out of a loan agreement between Bourke and Westpac. The bank sought the judgment for unpaid amounts due under the loan agreement. Bourke applied to set aside the default judgment, arguing that he had a real prospect of successfully defending the claim. The court had to determine whether Bourke's application was sufficiently meritorious to warrant setting aside the default judgment.

The central issue before the court was whether Bourke had demonstrated a real prospect of successfully defending the claim. The court considered Bourke's affidavit and the evidence provided by both parties. The court held that Bourke had not established a real prospect of successfully defending the claim, as the evidence did not provide a sufficient basis to challenge the bank's claim. The court also found that Bourke's application was not made promptly and without any justifiable excuse for the delay.

Accordingly, the court dismissed Bourke's application to set aside the default judgment. The court emphasised that default judgments are not to be lightly set aside, and that a party must demonstrate a real prospect of successfully defending the claim. The court also noted that Bourke had failed to provide a satisfactory explanation for his delay in making the application. The final orders included the dismissal of Bourke's application and an order that Bourke pay Westpac's costs of the application.

Orders