Malak v Pepsico Australia Pty Limited [1999] NSWSC 85

The defendant provided a satisfactory explanation for the delay in filing a defence, including issues retrieving the file and an oversight, and has shown a bona fide defence on the merits. There was minimal delay in seeking to set aside the default judgment. Therefore, the default judgment should be set aside, and the plaintiff’s costs should be costs in the cause.

Jurisdiction: Australia
Judgment Date: 17 February 1999
Procedural Posture: Application to Set Aside Default Judgment / Interlocutory
Outcome: Default judgment set aside; costs in the cause.
Legal Topics: ['default Judgment' 'setting Aside Judgment' 'explanation for Delay' 'bona Fide Defence' 'costs in the Cause']

['civil Procedure'] ['default Judgment' 'setting Aside Judgment' 'explanation for Delay' 'bona Fide Defence' 'costs in the Cause']

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Procedural Posture

Application to Set Aside Default Judgment / Interlocutory

Legal Issues

1 ['Whether default judgment should be set aside under Part 40 r 9(2) of the Supreme Court Rules' 'Whether the defendant provided an adequate explanation for delay and demonstrated a bona fide defence' 'Proper allocation of costs in the event default judgment is set aside']

Ratio Decidendi

Court Disposition

Default judgment set aside; costs in the cause.

Orders

['The default judgment entered on 3 December 1998 is set aside.' "The plaintiff's costs be costs in the cause."]