Josa Constructions Pty Ltd v Amarino Pty Ltd [2016] NSWDC 306

Josa Constructions Pty Ltd v Amarino Pty Ltd [2016] NSWDC 306

The default judgment was set aside because the plaintiff's solicitor knew the defendants intended to file a defence, had engaged in correspondence about particulars, failed to respond to requests for notice before default judgment, and obtained default judgment without proper notice while omitting material correspondence from the supporting affidavit. That conduct lulled the defendants' solicitor into a false sense of security and amounted to a representation by omission that judgment would not be entered without warning, so the judgment was entered against good faith under r 36.15. Alternatively, the discretion under r 36.16 was enlivened and should be exercised because there was no...

Jurisdiction
Australia
Judgment Date
07 September 2016
Procedural Posture
Civil Notice of Motion Concerning Default Judgment / Defendants' Motion to Set Aside Default Judgment and for Leave to File Defences
Outcome
Default judgment set aside; defendants permitted to file a defence; solicitor for the plaintiff required to show cause concerning personal indemnity costs and referral to the Legal Services Commissioner.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'against Good Faith' 'notice of Intention to Enter Judgment' 'further and Better Particulars' 'solicitor Conduct' 'costs Personally Against Solicitor' 'referral to Legal Services Commissioner']
['civil Procedure' 'professional Conduct'] ['default Judgment' 'setting Aside Judgment' 'against Good Faith' 'notice of Intention to Enter Judgment' 'further and Better Particulars' 'solicitor Conduct' 'costs Personally Against Solicitor' 'referral to Legal Services Commissioner']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Notice of Motion Concerning Default Judgment / Defendants' Motion to Set Aside Default Judgment and for Leave to File Defences

Legal Issues

  1. 1 ['Whether the default judgment should be set aside under r 36.15 UCPR because it was entered irregularly, illegally or against good faith.' 'Whether the default judgment should alternatively be set aside under r 36.16 UCPR.' 'Whether the absence of affidavit evidence going to the merits of the proposed defence prevented the judgment being set aside.' "Whether the plaintiff's solicitor's conduct in obtaining default judgment without notice and without disclosing correspondence warranted costs or referral issues being considered."]

Ratio Decidendi

The default judgment was set aside because the plaintiff's solicitor knew the defendants intended to file a defence, had engaged in correspondence about particulars, failed to respond to requests for notice before default judgment, and obtained default judgment without proper notice while omitting material correspondence from the supporting affidavit. That conduct lulled the defendants' solicitor into a false sense of security and amounted to a representation by omission that judgment would not be entered without warning, so the judgment was entered against good faith under r 36.15. Alternatively, the discretion under r 36.16 was enlivened and should be exercised because there was no...

Court Disposition

Default judgment set aside; defendants permitted to file a defence; solicitor for the plaintiff required to show cause concerning personal indemnity costs and referral to the Legal Services Commissioner.

Orders

  • ['Pursuant to Part 36.15 UCPR, default judgment be set aside.' 'Alternatively, pursuant to part 36.16 UCPR, default judgment be set aside.' 'Pursuant to R1.12, the defendants file a defence to the statement of claim on or before 17 October 2016.' 'That Mr Yakenian be given until 4pm on 14 September 2016 to show...