Gough Family Holdings Pty Ltd v Khan & Anor [2020] NSWDC 735

Gough Family Holdings Pty Ltd v Khan & Anor [2020] NSWDC 735

The default judgment was irregular as it included amounts for interest that were overstated, improper inclusion of unliquidated damages (lost rent), and failure to credit CGT, with these irregularities in aggregate being neither trifling nor inconsequential. Therefore, the judgment must be set aside under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) to allow the applicants to contest quantum and advance their defence.

Jurisdiction
Australia
Judgment Date
27 November 2020
Procedural Posture
Vendor's Suit (civil) / Application to Set Aside Default Judgment
Outcome
Default judgment set aside on terms; applicants to pay thrown away costs; directions made for further conduct of the proceedings.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'irregularity' 'quantum of Damages' 'vendor and Purchaser']
['civil Procedure'] ['default Judgment' 'setting Aside Judgment' 'irregularity' 'quantum of Damages' 'vendor and Purchaser']

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Procedural Posture

Vendor's Suit (civil) / Application to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether applicants provided a sufficient explanation for delay in defending proceedings and seeking to set aside default judgment' 'Whether the default judgment was irregular due to quantum claimed including overstatement of interest, improper allowance for lost rent, and lack of credit for capital gains tax (CGT)' 'Whether the applicants are entitled to renew application to set aside default judgment after an earlier unsuccessful application']

Ratio Decidendi

The default judgment was irregular as it included amounts for interest that were overstated, improper inclusion of unliquidated damages (lost rent), and failure to credit CGT, with these irregularities in aggregate being neither trifling nor inconsequential. Therefore, the judgment must be set aside under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) to allow the applicants to contest quantum and advance their defence.

Court Disposition

Default judgment set aside on terms; applicants to pay thrown away costs; directions made for further conduct of the proceedings.

Orders

  • ['Pursuant to r 36.15 of the UCPR, the default judgment entered on 9 April 2020 is set aside on terms that the applicants pay the respondent the costs thrown away from reliance on that judgment, payable forthwith.' 'The respondent is to notify the sheriff engaged in enforcement of the judgment that it has been set...