Westpac Banking Corporation v Michael Vincent Bourke
[2012] NSWSC 111
•17 February 2012
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 183Category: 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 defendants' have failed to prosecute their application, originally filed on 1 December 2010, with due dispatch.
The plaintiff's case
The plaintiff relies on the affidavits of Yvonne Chan dated 11 August 2010 and 30 August 2010, a bank officer, in support of its judgment orders and the pleaded facts in its commercial list statement. There are also affidavits of Mr Noel Richard McCoy of 4 August 2010, and Mr Robert Salt of 3 June 2010, deposing to service.
On 30 July 2010, his Honour Justice Hammerschlag granted the plaintiff leave to file by 12 August 2010 any notice of motion for default judgment against the defendants, to be made returnable on 27 August 2010.
On 12 August 2010, the plaintiff filed the notice of motion for default judgment in respect of the defendants.
On 27 August 2010, his Honour Justice Hammerschlag was satisfied at the return of the motion with the evidence tendered by the plaintiff and that default judgment should be granted.
On 31 August 2010, his Honour Justice Hammerschlag made final orders in respect of the plaintiff's motion.
On 2 December 2010, the defendants filed a notice of motion to set aside the plaintiff's default judgment with the Supreme Court Registry, together with the affidavit of Mr Michael Bourke of 1 December 2010.
On 4 February 2011, the defendants' notice of motion to set aside the default judgment was dismissed due to the defendants' absence from the hearing.
On 8 February 2011, the first defendant filed an affidavit in the Federal Magistrates Court, Proceeding No. SYG 2615 of 2010. The first defendant noted at paragraph 2 of his affidavit that the defendants intended to re-agitate the dismissed motion to set aside the default judgment.
On 21 December 2011, the first defendant filed a draft notice of motion to set aside the plaintiff's default judgment at the hearing of the creditor's petition in respect of the first defendant. Driver FM delivered his reasons for judgment, noting that the proceedings "belatedly taken in the Supreme Court to set aside the default judgment" had little or no prospects of success.
On 11 January 2012, the first defendant's application to stay the sequestration order was dismissed, with Buchanan J noting the judgment of Driver FM that the application to set aside the default judgment had little or no prospects of success.
The legal principles
For an application to set aside the default judgment, the principles are well-known, and the application should be made as soon as possible after it comes to the defendant's knowledge: North v Shierlaw (1897) 13 WN (NSW) 163; and Rosling v Ben Shemesh [1960] VR 173.
The defendants have failed to re-agitate their motion to set aside the default judgment for some time, either for themselves, or through solicitors.
There has been unsatisfactory explanation by the defendants as to:
(1) Their absence at the return of the motion on 4 February 2011; and
(2) The 11 month delay in re-agitating the motion: Term Sales Pty Ltd v Jospeh (1949) 67 WN (NSW) 44.
The failure by the defendants to pursue their application to set aside the default judgment has caused significant prejudice and cost to the plaintiff in needing to respond to the subsequent applications.
The defendants' failure to respond to the plaintiff's pleadings in a timely fashion weighs heavily upon the defendant's prospects of success: Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at [244].
The defendants have failed to demonstrate in their draft commercial list response that there is any real issue between the parties to be determined: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at [91]. There is no possibility of a good cause of action arising from the draft commercial list response, and litigating it further, even if the defendants were interested in doing so, would involve useless expense.
As to the proposed commercial list response, the defendants' proposed defence is clearly embarrassing. A pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence: Gunns Ltd v Marr [2005] VSC 251 at [14]-15]; or if it pleads confusing or irrelevant allegations: Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278 at [18]. No attempt is made in the defendants' draft pleadings to link the vague factual matters asserted to any proper defence, or to respond to the matters alleged by the plaintiff.
In Northam v Favelle Favco Holdings Pty Ltd , (unreported, 7 March 1995), Bryson J said at 2 - 3:
A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to, or if imprecise or slang words are used with unduly broad ranges of possible meanings or without clear meanings. What is referred to must be clearly stated showing, as appropriate, when and where an event happened, who participated, what was said, what was the relevant effect of any document and so forth. It is not fair to require a defendant to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts' reports. He might get it wrong, and the greater the complexities are, the more probable it is that he will understand what is alleged in some different way to what the plaintiffs will rely on. Procedural justice can be upset just as much by opportunistic advocacy exploiting a choice among several possibilities as by an ambush from complete concealment. In the world of practicalities a defendant is unlikely to receive much protection when evidence is tendered which is an available meaning of a pleading if he has not attacked the pleading at an interlocutory stage.
This passage has been applied a number of times: see National Australia Bank v Menere [2010] NSWSC 381 at [64]-[65] per Davies J; Wen Guo Jin v St George Bank Limited [2011] NSWSC 183 per McCallum J; McGuirk v University of New South Wales [2009] NSWSC 1424 per Johnson J.
Of course, the only obvious difference in the application of that passage to the present facts is that the allegation of facts in the defence would not even be sufficient to constitute a cause of action.
The defendants plead no matters that would constitute a cause of action. What matters they do plead are vague, irrelevant and embarrassing. The matters pleaded by the plaintiff are straightforward matters of obligations under bank facilities.
Notwithstanding the defendants' contention that the court should adjourn the matter, it was plainly the case that the adjournment application was also required to be dismissed.
For all of those reasons the court makes the following orders :
(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.
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Decision last updated: 27 February 2012
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