Guarin v Ichor Constructions Pty Ltd [2016] NSWSC 638

Guarin v Ichor Constructions Pty Ltd [2016] NSWSC 638

The judgment is set aside as the Third Defendant has an arguable defence, and there is no prejudice to the Plaintiff since damages were not yet assessed. However, the explanation for delay is unsatisfactory, and costs incurred due to the delay and mediation adjournments should be borne by the Third Defendant.

Jurisdiction
Australia
Judgment Date
18 May 2016
Procedural Posture
Personal Injury; Civil / Application to Set Aside Default Judgment
Outcome
Application granted; previous default judgment set aside; Third Defendant allowed to defend; orders as to costs made against Third Defendant.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'personal Injury' 'costs' 'delay in Defending' 'multiple Defendants']
['civil Procedure'] ['default Judgment' 'setting Aside Judgment' 'personal Injury' 'costs' 'delay in Defending' 'multiple Defendants']

Case Brief

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Procedural Posture

Personal Injury; Civil / Application to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether default judgment against Third Defendant should be set aside' 'Whether Third Defendant demonstrated an arguable defence' 'Whether there is a satisfactory explanation for delay in defending' 'Who should bear the costs related to aborted mediations and motion']

Ratio Decidendi

The judgment is set aside as the Third Defendant has an arguable defence, and there is no prejudice to the Plaintiff since damages were not yet assessed. However, the explanation for delay is unsatisfactory, and costs incurred due to the delay and mediation adjournments should be borne by the Third Defendant.

Court Disposition

Application granted; previous default judgment set aside; Third Defendant allowed to defend; orders as to costs made against Third Defendant.

Orders

  • ['Judgment entered on 27 February 2014 in favour of the Plaintiff against the Third Defendant is set aside and the Third Defendant is allowed to defend.' "Third Defendant to pay Plaintiff's costs thrown away by reason of the default judgment, including costs of two adjourned mediations in November and December...