Acimall AustraliaCong Bui Buu t/a Austcraft Furnitures [2004] NSWLC 4

Acimall AustraliaCong Bui Buu t/a Austcraft Furnitures [2004] NSWLC 4

The motion was dismissed because the claim was for a sum certain ascertainable from positive data and the default judgment did not appear to have been entered irregularly. Even if there had been irregularity, the applicant's repeated delays and defaults had caused obvious and probably irreparable prejudice to the judgment creditor, including impaired witness recollection and limitation-period consequences, so that any trial ordered after the delay would be unfair and oppressive to the plaintiff.

Jurisdiction
Australia
Judgment Date
10 June 2004
Procedural Posture
Civil / Fifth Motion by the Judgment Debtor to Set Aside Default Judgment
Outcome
Motion dismissed.
Legal Topics
['setting Aside Default Judgment' 'irregularity' 'liquidated and Unliquidated Claims' 'delay' 'prejudice' 'limitation Period' 'arguable Defence']
['civil Procedure' 'contract Law'] ['setting Aside Default Judgment' 'irregularity' 'liquidated and Unliquidated Claims' 'delay' 'prejudice' 'limitation Period' 'arguable Defence']

Case Brief

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Procedural Posture

Civil / Fifth Motion by the Judgment Debtor to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the default judgment entered on 8 November 2000 was entered irregularly because the claim was not a liquidated demand as pleaded.' 'Whether the judgment debtor had shown sufficient cause to set aside the default judgment under the Local Court Rules.' 'Whether delay and prejudice to the judgment creditor warranted dismissal despite the asserted arguable defence.']

Ratio Decidendi

The motion was dismissed because the claim was for a sum certain ascertainable from positive data and the default judgment did not appear to have been entered irregularly. Even if there had been irregularity, the applicant's repeated delays and defaults had caused obvious and probably irreparable prejudice to the judgment creditor, including impaired witness recollection and limitation-period consequences, so that any trial ordered after the delay would be unfair and oppressive to the plaintiff.

Court Disposition

Motion dismissed.

Orders

  • ['Motion dismissed.' "Applicant to pay respondent's costs of disposal of motion in sum agreed or assessed."]