Jones v Riley [2022] NSWDC 323

Jones v Riley [2022] NSWDC 323

The applicant failed to justify setting aside the default judgment because he had been served with the originating process, gave no adequate explanation for failing to file a defence, delayed excessively despite knowing of the judgment, caused financial and forensic prejudice to the respondent, and his proposed variation and discharge defences were not sufficiently strong to outweigh those considerations. However, because there were bona fide arguable issues, not contradicted by the respondent, that only $92,630 was advanced and $15,600 was repaid, the Court varied the default judgment sum to $129,800.83 rather than setting the judgment aside.

Jurisdiction
Australia
Judgment Date
09 August 2022
Procedural Posture
Civil Application to Set Aside Default Judgment / Notice of Motion Dated 3 June 2022 to Set Aside Default Judgment Entered on 27 April 2020
Outcome
Default judgment varied as to quantum; applicant's notice of motion to set aside the default judgment dismissed with costs.
Legal Topics
['application to Set Aside Default Judgment' 'bona Fide Arguable Defence' 'service of Originating Process' 'explanation for Default' 'delay' 'prejudice' 'variation of Default Judgment Quantum' 'post Judgment Interest']
['civil Procedure' 'debt Recovery'] ['application to Set Aside Default Judgment' 'bona Fide Arguable Defence' 'service of Originating Process' 'explanation for Default' 'delay' 'prejudice' 'variation of Default Judgment Quantum' 'post Judgment Interest']

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Procedural Posture

Civil Application to Set Aside Default Judgment / Notice of Motion Dated 3 June 2022 to Set Aside Default Judgment Entered on 27 April 2020

Legal Issues

  1. 1 ['Whether the applicant was served with the originating process before default judgment was entered.' 'Whether the applicant had an adequate explanation for failing to file a defence.' "Whether the applicant's delay in bringing the application to set aside the default judgment should defeat the application." 'Whether the respondent would suffer prejudice if the default judgment were set aside.' 'Whether the applicant established bona fide arguable defences to the loan claim.' 'Whether the default judgment amount should be varied to reflect arguable issues about the amount advanced and repaid.']

Ratio Decidendi

The applicant failed to justify setting aside the default judgment because he had been served with the originating process, gave no adequate explanation for failing to file a defence, delayed excessively despite knowing of the judgment, caused financial and forensic prejudice to the respondent, and his proposed variation and discharge defences were not sufficiently strong to outweigh those considerations. However, because there were bona fide arguable issues, not contradicted by the respondent, that only $92,630 was advanced and $15,600 was repaid, the Court varied the default judgment sum to $129,800.83 rather than setting the judgment aside.

Court Disposition

Default judgment varied as to quantum; applicant's notice of motion to set aside the default judgment dismissed with costs.

Orders

  • ['The amount of the default judgment is varied so that the sum for the judgment is $129,800.83.' 'Subject to orders 3 & 4, the defendant is to pay the plaintiff post-judgment interest under s 101 of the Civil Procedure Act on the varied judgment sum.' 'The defendant is to make any application, supported by a short...