Weng v NSW Demo & Exca Services Pty Ltd [2024] NSWDC 101

Weng v NSW Demo & Exca Services Pty Ltd [2024] NSWDC 101

The default judgment was not set aside because the date errors in the solicitor's affidavit were obvious typographical errors, the affidavit and annexures substantially proved service, the first plaintiff's failure to identify the errors was not irregular conduct, UCPR r 36.16 did not apply because the application was outside the 14-day timeframe, and the defendant did not discharge its onus of showing a bona fide defence on the merits where the proposed defence admitted liability and challenged only quantum.

Jurisdiction
Australia
Judgment Date
04 March 2024
Procedural Posture
Civil Proceedings; Procedural Ruling on Application to Set Aside Default Judgment / Defendant's Notice of Motion Filed 14 November 2023 to Set Aside Default Judgment Before Assessment of Damages
Outcome
Defendant's Notice of Motion dismissed; costs reserved for written submissions; proceedings stood over for allocation of a hearing date for assessment of damages.
Legal Topics
['default Judgment' 'application to Set Aside Judgment' 'irregularity' 'good Faith' 'bona Fide Defence on the Merits' 'assessment of Damages' 'indemnity Costs']
['civil Procedure' 'judgments and Orders' 'costs' 'trespass to Land' 'negligence'] ['default Judgment' 'application to Set Aside Judgment' 'irregularity' 'good Faith' 'bona Fide Defence on the Merits' 'assessment of Damages' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil Proceedings; Procedural Ruling on Application to Set Aside Default Judgment / Defendant's Notice of Motion Filed 14 November 2023 to Set Aside Default Judgment Before Assessment of Damages

Legal Issues

  1. 1 ['Whether default judgment should be set aside for irregularity under UCPR r 36.15 because of typographical date errors in an affidavit of service.' 'Whether default judgment was entered against good faith.' 'Whether UCPR r 36.16 applied to the application.' 'Whether the defendant demonstrated a bona fide defence on the merits sufficient to set aside default judgment.' 'Whether costs of the Notice of Motion should be determined after written submissions.']

Ratio Decidendi

The default judgment was not set aside because the date errors in the solicitor's affidavit were obvious typographical errors, the affidavit and annexures substantially proved service, the first plaintiff's failure to identify the errors was not irregular conduct, UCPR r 36.16 did not apply because the application was outside the 14-day timeframe, and the defendant did not discharge its onus of showing a bona fide defence on the merits where the proposed defence admitted liability and challenged only quantum.

Court Disposition

Defendant's Notice of Motion dismissed; costs reserved for written submissions; proceedings stood over for allocation of a hearing date for assessment of damages.

Orders

  • ["Defendant's Notice of Motion dismissed." 'Liberty to the parties to bring in Short Minutes of Order for an exchange of written submissions for the costs of the Notice of Motion to be determined by Gibson DCJ "on the papers".' 'Proceedings stood over before the List Judge on 8 March 2024 for allocation of a hearing...