Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216

Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216

Although default was established because the Court had fixed 17 July 2006 for filing a defence and no defence was filed, the affidavit did not prove service of the Statement of Claim by post because it did not adequately prove the address, postage, or posting of the envelope. In light of the unsatisfactory evidence of service and absence of notice, the Court declined to enter default judgment without notice and ordered service of the motion by ordinary service.

Jurisdiction
Australia
Judgment Date
15 November 2006
Procedural Posture
Equity Proceedings Seeking Damages for Breach of Contract, Breach of Fiduciary Duty and Defamation, and Related Declaratory and Injunctive Relief / Plaintiffs' Motion for Default Judgment
Outcome
Default judgment not entered on the present evidence; motion stood over and notice ordered to be served on the defendants.
Legal Topics
['default Judgment' 'service by Post' 'proof of Service' 'notice of Application for Default Judgment' 'ordinary Service']
['civil Procedure' 'equity' 'contract' 'defamation'] ['default Judgment' 'service by Post' 'proof of Service' 'notice of Application for Default Judgment' 'ordinary Service']

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Procedural Posture

Equity Proceedings Seeking Damages for Breach of Contract, Breach of Fiduciary Duty and Defamation, and Related Declaratory and Injunctive Relief / Plaintiffs' Motion for Default Judgment

Legal Issues

  1. 1 ['Whether the defendants were in default for failure to file a defence within the time fixed by the Court' 'Whether the affidavit proved ordinary service of the Statement of Claim by post' 'Whether default judgment should be entered without notice to the defendants']

Ratio Decidendi

Although default was established because the Court had fixed 17 July 2006 for filing a defence and no defence was filed, the affidavit did not prove service of the Statement of Claim by post because it did not adequately prove the address, postage, or posting of the envelope. In light of the unsatisfactory evidence of service and absence of notice, the Court declined to enter default judgment without notice and ordered service of the motion by ordinary service.

Court Disposition

Default judgment not entered on the present evidence; motion stood over and notice ordered to be served on the defendants.

Orders

  • ['Stand over the hearing of the motion filed on 4 September 2006 to 29 November 2006 at 09:30 before Brereton J.' 'Order that notwithstanding Uniform Civil Procedure Rules 2005 (NSW), r 16.3(1A), notice of the motion and of its adjourned hearing date be served on the defendant, by ordinary service.']