Dai v Zhu [2013] NSWCA 412

Dai v Zhu [2013] NSWCA 412

The applicants, despite procedural flaws identified in the primary judgment, failed to establish by evidence that they have a bona fide defence or have purged their longstanding non-compliance with discovery and court orders. Accordingly, it is not in the interests of justice to set aside the default judgment or to refuse summary disposition. The appeals must be dismissed.

Parties
First Applicant: Qin Fen Dai; Second Applicant: Carter Bai; First Respondent: Yi Lin Zhu; Second Respondent: Lei Jiang
Jurisdiction
Australia
Judgment Date
05 December 2013
Procedural Posture
Civil Appeal / Decision on Appeal From Interlocutory Orders
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
Summary Disposal, Discovery, Default Judgment, Setting Aside Judgment, Procedural Fairness
Civil Procedure Summary Disposal Discovery Default Judgment Setting Aside Judgment Procedural Fairness

Case Brief

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Parties

Qin Fen Dai

First Applicant

Carter Bai

Second Applicant

Yi Lin Zhu

First Respondent

Lei Jiang

Second Respondent

Procedural Posture

Civil Appeal / Decision on Appeal From Interlocutory Orders

Legal Issues

  1. 1 Whether the primary judge erred in striking out the applicants' defence and entering judgment due to discovery default
  2. 2 Whether the primary judge erred in refusing to set aside default judgment in the 2011 Proceedings
  3. 3 Significance of failure to put on evidence of a bona fide defence

Ratio Decidendi

The applicants, despite procedural flaws identified in the primary judgment, failed to establish by evidence that they have a bona fide defence or have purged their longstanding non-compliance with discovery and court orders. Accordingly, it is not in the interests of justice to set aside the default judgment or to refuse summary disposition. The appeals must be dismissed.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • Grant leave to the applicants to appeal.
  • Direct the applicants to file a notice of appeal within seven days.