Ion v Danutz [2012] NSWSC 941

Ion v Danutz [2012] NSWSC 941

The appeal was allowed because the Magistrate erred in law in striking out the defence and entering default judgment. Mr Ion was entitled to deny the allegations in the statement of claim, his defence put Mr Danutz to proof, and his affidavit disclosed evidence supporting a real defence to the alleged loan. Summary disposal was therefore not justified. Default judgment also could not be entered because there was no affidavit satisfying UCPR 16.6(2), and there was no evidence proving the alleged loan, the amount of the loan, or that it remained unpaid. The short delay in filing the appeal was explained, caused no prejudice, and leave was warranted because refusing leave would cause...

Jurisdiction
Australia
Judgment Date
21 August 2012
Procedural Posture
Appeal From the Local Court Against Orders Striking Out a Defence, Entering Default Judgment and Awarding Costs / Application for Extension of Time and Leave to Appeal; Appeal Determined
Outcome
Extension of time granted, leave to appeal granted, appeal upheld, Local Court decision set aside and matter remitted to the Local Court at Campbelltown.
Legal Topics
['appeal From Local Court' 'extension of Time to Appeal' 'leave to Appeal' 'summary Judgment' 'striking Out Pleadings' 'default Judgment' 'pleadings and Particulars']
['civil Procedure' 'appellate Procedure'] ['appeal From Local Court' 'extension of Time to Appeal' 'leave to Appeal' 'summary Judgment' 'striking Out Pleadings' 'default Judgment' 'pleadings and Particulars']

Case Brief

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Procedural Posture

Appeal From the Local Court Against Orders Striking Out a Defence, Entering Default Judgment and Awarding Costs / Application for Extension of Time and Leave to Appeal; Appeal Determined

Legal Issues

  1. 1 ['Whether an extension of time to file the appeal should be granted.' 'Whether leave to appeal from interlocutory Local Court orders should be granted.' "Whether the Magistrate erred in striking out Mr Ion's defence under UCPR 14.28." 'Whether the Magistrate erred in entering default judgment where the application was not supported by an affidavit complying with UCPR 16.6(2).']

Ratio Decidendi

The appeal was allowed because the Magistrate erred in law in striking out the defence and entering default judgment. Mr Ion was entitled to deny the allegations in the statement of claim, his defence put Mr Danutz to proof, and his affidavit disclosed evidence supporting a real defence to the alleged loan. Summary disposal was therefore not justified. Default judgment also could not be entered because there was no affidavit satisfying UCPR 16.6(2), and there was no evidence proving the alleged loan, the amount of the loan, or that it remained unpaid. The short delay in filing the appeal was explained, caused no prejudice, and leave was warranted because refusing leave would cause...

Court Disposition

Extension of time granted, leave to appeal granted, appeal upheld, Local Court decision set aside and matter remitted to the Local Court at Campbelltown.

Orders

  • ['An extension of time to file this appeal is granted.' 'Leave to appeal is granted.' 'The appeal is upheld.' 'The decision of his Honour Magistrate Hiatt dated 19 January 2012 is set aside.' 'The matter is remitted to the Local Court at Campbelltown to be determined according to law.' "The defendant is to pay the...