85 Degrees Coffee Australia Pty Ltd v Ji [2021] NSWDC 99

85 Degrees Coffee Australia Pty Ltd v Ji [2021] NSWDC 99

The default judgment was set aside because the defendant's failure to attend to the Statement of Claim was adequately explained by her medical condition, miscarriage, stress, and the circumstances at the beginning of the COVID-19 pandemic; the delay was relatively short; and the draft Defence and affidavit evidence raised bona fide arguable or triable issues concerning misleading and deceptive conduct, unconscionable conduct, collateral contract, reliance, loss and set off. Security for the judgment sum was not imposed because the plaintiff had not shown prejudice, impecuniosity, or dissipation of assets, and the defendant appeared to have sufficient assets to meet any judgment.

Jurisdiction
Australia
Judgment Date
31 March 2021
Procedural Posture
Civil Procedure Default Judgment / Notice of Motion to Set Aside Default Judgment
Outcome
Default judgment set aside; defendant permitted to defend, subject to costs and disbursement conditions.
Legal Topics
['setting Aside Default Judgment' 'bona Fide Defence on Merits' 'delay in Defending Proceedings' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'collateral Contract' 'equitable Set Off' 'security as Condition of Setting Aside Judgment']
['civil Procedure' 'franchising' 'consumer Law' 'contract Law'] ['setting Aside Default Judgment' 'bona Fide Defence on Merits' 'delay in Defending Proceedings' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'collateral Contract' 'equitable Set Off' 'security as Condition of Setting Aside Judgment']

Case Brief

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Procedural Posture

Civil Procedure Default Judgment / Notice of Motion to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the defendant provided an adequate explanation for the failure to defend and the delay in bringing the application.' 'Whether the defendant had a bona fide defence on the merits raising an arguable or triable issue.' "Whether setting aside the default judgment should be conditioned on security for the plaintiff's claimed amount or other costs-related conditions."]

Ratio Decidendi

The default judgment was set aside because the defendant's failure to attend to the Statement of Claim was adequately explained by her medical condition, miscarriage, stress, and the circumstances at the beginning of the COVID-19 pandemic; the delay was relatively short; and the draft Defence and affidavit evidence raised bona fide arguable or triable issues concerning misleading and deceptive conduct, unconscionable conduct, collateral contract, reliance, loss and set off. Security for the judgment sum was not imposed because the plaintiff had not shown prejudice, impecuniosity, or dissipation of assets, and the defendant appeared to have sufficient assets to meet any judgment.

Court Disposition

Default judgment set aside; defendant permitted to defend, subject to costs and disbursement conditions.

Orders

  • ['The default judgment entered on 27 April 2020 is set aside.' 'The defendant is directed to file and serve a Defence to the Statement of Claim on or before 5pm on Wednesday 14 April 2021.' "The defendant is to pay 50% of the plaintiff's costs of the Notice of Motion, as agreed or assessed." 'The defendant is to pay...