Connam Pty Ltd as trustee for Christodoulou Family Trust v Lazarou (No 2) [2019] NSWSC 1863

Connam Pty Ltd as trustee for Christodoulou Family Trust v Lazarou (No 2) [2019] NSWSC 1863

The notice of motion was dismissed because the applicants did not establish an arguable defence. The evidence did not show that the plaintiff or its solicitor acted unconscionably, knew of any special disadvantage, or was required to make further inquiries beyond the legal advice, financial advice and translation certificates provided. Service was proved by affidavit evidence and not displaced. The applicants' affidavits were inadequate and vague, and they failed to satisfactorily explain the delay between learning they might lose their house, retaining lawyers and filing the motion.

Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Civil Procedure Application to Set Aside Default Judgment in Loan Guarantee and Possession Proceedings / Notice of Motion Filed by the Second and Third Defendants After Default Judgment Entered Against Them
Outcome
Notice of motion dismissed; applicants ordered to pay the plaintiff's costs.
Legal Topics
['application to Set Aside Default Judgment' 'arguable Defence' 'unconscionable Conduct' 'special Disadvantage' 'service of Originating Process' 'delay' 'costs']
['civil Procedure' 'equity' 'guarantees and Mortgages'] ['application to Set Aside Default Judgment' 'arguable Defence' 'unconscionable Conduct' 'special Disadvantage' 'service of Originating Process' 'delay' 'costs']

Case Brief

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Procedural Posture

Civil Procedure Application to Set Aside Default Judgment in Loan Guarantee and Possession Proceedings / Notice of Motion Filed by the Second and Third Defendants After Default Judgment Entered Against Them

Legal Issues

  1. 1 ['Whether the default judgment entered against the second and third defendants should be set aside.' 'Whether the applicants had an arguable Amadio unconscionability defence based on age, language, alleged lack of adequate independent advice and reliance on their son.' 'Whether the applicants were validly served with the statement of claim.' 'Whether delay and prejudice justified refusing the application.']

Ratio Decidendi

The notice of motion was dismissed because the applicants did not establish an arguable defence. The evidence did not show that the plaintiff or its solicitor acted unconscionably, knew of any special disadvantage, or was required to make further inquiries beyond the legal advice, financial advice and translation certificates provided. Service was proved by affidavit evidence and not displaced. The applicants' affidavits were inadequate and vague, and they failed to satisfactorily explain the delay between learning they might lose their house, retaining lawyers and filing the motion.

Court Disposition

Notice of motion dismissed; applicants ordered to pay the plaintiff's costs.

Orders

  • ['The notice of motion is dismissed.' "The applicants are to pay the plaintiff's costs."]