Portcam Pty Ltd trading as Edge Residential Real Estate v Mervyn Keane [2021] NSWDC 686

Portcam Pty Ltd trading as Edge Residential Real Estate v Mervyn Keane [2021] NSWDC 686

The statement of claim was served in compliance with the Registrar's substituted service orders because it was sent to and opened by the Applicant by email, and the orders did not require compliance with the Service and Execution of Process Act 1992 (Cth) or attachment of a Form 1 notice. The absence of a Form 1 notice did not make the default judgment irregular in the circumstances. The Applicant also failed to provide sworn evidence establishing facts which, if proved at trial, would afford a defence, and did not justify the Court exercising its discretion to set aside the default judgment.

Jurisdiction
Australia
Judgment Date
15 December 2021
Procedural Posture
Civil Application to Set Aside Default Judgment / Notice of Motion After Default Judgment
Outcome
The Applicant's motions were dismissed and the default judgment remained in force.
Legal Topics
['substituted Service' 'interstate Service' 'service and Execution of Process Act 1992 (cth) Form 1 Notice' 'setting Aside Default Judgment' 'change of Venue']
['civil Procedure' 'service of Process' 'default Judgment'] ['substituted Service' 'interstate Service' 'service and Execution of Process Act 1992 (cth) Form 1 Notice' 'setting Aside Default Judgment' 'change of Venue']

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Procedural Posture

Civil Application to Set Aside Default Judgment / Notice of Motion After Default Judgment

Legal Issues

  1. 1 ['Whether service of the statement of claim was effected on the Applicant.' 'Whether service was invalid or irregular because the Respondent did not attach a Form 1 notice under the Service and Execution of Process Act 1992 (Cth).' 'Whether the default judgment should be set aside under UCPR 36.15(1) or UCPR 36.16(2)(a).' 'Whether the Applicant established a prima facie or arguable defence on the merits.' "Whether the Applicant's motion for change of venue should be granted."]

Ratio Decidendi

The statement of claim was served in compliance with the Registrar's substituted service orders because it was sent to and opened by the Applicant by email, and the orders did not require compliance with the Service and Execution of Process Act 1992 (Cth) or attachment of a Form 1 notice. The absence of a Form 1 notice did not make the default judgment irregular in the circumstances. The Applicant also failed to provide sworn evidence establishing facts which, if proved at trial, would afford a defence, and did not justify the Court exercising its discretion to set aside the default judgment.

Court Disposition

The Applicant's motions were dismissed and the default judgment remained in force.

Orders

  • ["The Applicant's application seeking to set aside the default judgment entered against it on 16 July 2021 is dismissed." "The balance of the Applicant's motion filed 10 August 2021 is dismissed." "The Applicant is to pay the Respondent's costs of the application on an ordinary basis." "The Applicant's motion filed...