B & B Enterprise (Aust) Pty Ltd v Sur Holdings Pty Ltd [2016] NSWSC 490

B & B Enterprise (Aust) Pty Ltd v Sur Holdings Pty Ltd [2016] NSWSC 490

The Magistrate's discretion miscarried because it was not open to find that the delay had not been adequately explained or that the draft defence did not disclose an arguable, bona fide case. In the circumstances, B & B Enterprise (Aust) Pty Ltd was unaware of the proceedings until after default judgment had been entered and then acted promptly, and it had arguable defences. The interests of justice required the default judgment to be set aside, and leave to appeal was warranted to correct a clear injustice.

Jurisdiction
Australia
Judgment Date
22 April 2016
Procedural Posture
Appeal From Local Court Refusal to Set Aside Default Judgment / Leave to Appeal and Appeal Determination in the Supreme Court of New South Wales
Outcome
Leave to appeal granted; appeal upheld; Local Court refusal to set aside default judgment quashed; default judgment set aside; Local Court costs order quashed; each party to pay its own Local Court costs; Sur Holdings Pty Ltd to pay the costs of the appeal.
Legal Topics
['default Judgment' 'setting Aside Default Judgment' 'leave to Appeal From Local Court' 'discretionary Appellate Review' 'interests of Justice' 'costs']
['civil Procedure' 'appellate Procedure'] ['default Judgment' 'setting Aside Default Judgment' 'leave to Appeal From Local Court' 'discretionary Appellate Review' 'interests of Justice' 'costs']

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Procedural Posture

Appeal From Local Court Refusal to Set Aside Default Judgment / Leave to Appeal and Appeal Determination in the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the Local Court decision refusing to set aside default judgment.' "Whether the Magistrate's discretion miscarried in refusing to set aside the default judgment." 'Whether B & B Enterprise (Aust) Pty Ltd had an adequate explanation for the delay in filing a defence.' 'Whether B & B Enterprise (Aust) Pty Ltd had shown an arguable, bona fide defence.' 'Whether the interests of justice required the default judgment to be set aside.']

Ratio Decidendi

The Magistrate's discretion miscarried because it was not open to find that the delay had not been adequately explained or that the draft defence did not disclose an arguable, bona fide case. In the circumstances, B & B Enterprise (Aust) Pty Ltd was unaware of the proceedings until after default judgment had been entered and then acted promptly, and it had arguable defences. The interests of justice required the default judgment to be set aside, and leave to appeal was warranted to correct a clear injustice.

Court Disposition

Leave to appeal granted; appeal upheld; Local Court refusal to set aside default judgment quashed; default judgment set aside; Local Court costs order quashed; each party to pay its own Local Court costs; Sur Holdings Pty Ltd to pay the costs of the appeal.

Orders

  • ['Leave to appeal granted.' 'Appeal upheld.' 'The order of 26 August 2015 dismissing the notice of motion of 31 July 2015 is quashed.' 'In substitution, the default judgment in favour of Sur Holdings Pty Ltd of 16 July 2015 is set aside.' 'The gross sum costs order of 26 August 2015 of $2,730 in favour of Sur...