Westpac Banking Corporation v Simon Wakim - [2011] NSWSC 414

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation & Anor v Simon Wakim [2011] NSWSC 414
Hearing dates: 6 May 2011
Decision date: 10 May 2011
Jurisdiction: Equity Division - Commercial List
Before: Einstein J
Decision:
Notice of motion dismissed. Defendant to pay the plaintiff's costs of the application.

Catchwords: Notice of motion seeking to set aside default judgment - Principles - No arguable defence - Prejudice to plaintiff
Cases Cited: Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300
New South Wales Bar Association v Smith (unreported, NSWCA 4 July 1991)
Pittalis v Sherefettin [1986] QB 868
Smith v New South Wales By Association (1992) 176 CLR 256
Category: Procedural and other rulings
Parties: Westpac Banking Corporation (First Plaintiff)
St George Financing Limited (Second Plaintiff)
Simon Wakim (Defendant)
Representation: Mr Robertson (First and Second Plaintiffs)
Ms Nolan (Defendant)
Henry Davis York (First and Second Plaintiffs)
Deutsch Partners (Defendant)

File Number(s): 2009/00298737

Judgment

The notice of motion

The defendant moves on a notice of motion seeking to set aside a default judgment entered in these proceedings on 23 July 2010.

The original proceedings were brought by St George Bank Limited and St George Finance Limited against Mr Simon Wakim.

The relief claimed by the plaintiffs against the defendant is for the sum of $3,069,753.75 together with interest.

The commercial list statement filed by the plaintiffs identified the issues in terms of whether the defendant is to pay the above described moneys, interests and costs pursuant to guarantees and the general terms and conditions and the cheque terms and conditions. In essence the plaintiffs' contentions are founded upon the plaintiffs' advances to a company associated with Mr Wakim.

The plaintiffs claimed that by guarantees and indemnities dated 20 September 2007 and 31 January 2008 given by the defendant to the plaintiffs in consideration of the plaintiffs granting or affording or continuing to grant and forward advances or accommodation to the company, the defendant guaranteed to the plaintiffs on the terms and conditions set out in those documents, the payment, when demanded in writing, of all money owing or payable by the company, including under the cheque plus count, and various other facilities.

The plaintiffs claimed that in breach of obligations under the facilities the company defaulted and that the defendant has failed to pay the amount owing to the plaintiff under the guarantees.

The defendant's contentions

The Defendant sought to set aside the default judgment pursuant to Uniform Civil Procedure rule 36.15 based on the following claims:

(1) The default judgment was entered in proceedings which were irregularly commenced as proceeding for a liquidated claim in circumstances where they should have properly been unliquidated;

(2) By reason of the irregularity in the proceedings the default judgment was also brought for the same liquidated claim and was thereby irregularly entered; and

(3) The notice of motion and affidavit in support of the default judgment both being dated 30 April 2010, were not served on the defendant despite 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: [2011] NSWSC 414
Decision Date: 10 May 2011

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Simon Wakim, the defendant, Simon Wakim, sought to set aside a default judgment entered against him in favour of the plaintiff, Westpac Banking Corporation. The plaintiff had initially obtained a default judgment due to the defendant's failure to respond to the claim within the stipulated time. The defendant applied to the Federal Circuit Court of Australia to set aside this judgment, arguing that he had an arguable defence and that setting aside the judgment would not prejudice the plaintiff.

The primary legal issues before the court were whether the defendant had established an arguable defence to the plaintiff's claim and whether setting aside the default judgment would cause prejudice to the plaintiff. The court had to determine whether the defendant's application met the criteria set out in established case law for setting aside a default judgment. Specifically, the court had to assess whether the defendant's explanation for the default was satisfactory and whether there was a reasonable prospect of success if the matter were to be determined at a hearing.

The court found that the defendant had failed to establish an arguable defence to the plaintiff's claim. Additionally, the court held that setting aside the default judgment would cause significant prejudice to the plaintiff, as the plaintiff would have to incur further costs and delays in pursuing its claim. The court emphasised the importance of strict compliance with procedural rules to avoid default judgments, but also highlighted that the power to set aside a default judgment should be exercised with caution. Consequently, the defendant's application to set aside the default judgment was dismissed.

Orders