Morrison v Smalley [2022] NSWDC 76

Morrison v Smalley [2022] NSWDC 76

The default judgment was entered irregularly because proper procedure was not followed, including ignoring directions of the Principal Registrar and claiming a liquidated amount where the nature of the damages required assessment. The defendant provided an adequate explanation for not filing a Defence and established arguable defences on the merits, namely unconscionability and contractual uncertainty. Therefore, the judgment should be set aside and the defendant permitted to defend.

Parties
Plaintiff: Angela Joy Morrison; Defendant: Andrew Smalley
Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Civil / Application to Set Aside Default Judgment
Outcome
Default judgment set aside and defendant permitted to defend.
Legal Topics
Default Judgment, Setting Aside Judgment, Unconscionable Conduct, Uncertainty in Contract
Civil Procedure Default Judgment Setting Aside Judgment Unconscionable Conduct Uncertainty in Contract

Case Brief

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Parties

Angela Joy Morrison

Plaintiff

Andrew Smalley

Defendant

Procedural Posture

Civil / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment was entered irregularly within the meaning of r 36.15 UCPR
  2. 2 Whether the defendant has provided adequate explanation for not filing a Defence and established a defence on the merits under r 36.16 UCPR

Ratio Decidendi

The default judgment was entered irregularly because proper procedure was not followed, including ignoring directions of the Principal Registrar and claiming a liquidated amount where the nature of the damages required assessment. The defendant provided an adequate explanation for not filing a Defence and established arguable defences on the merits, namely unconscionability and contractual uncertainty. Therefore, the judgment should be set aside and the defendant permitted to defend.

Court Disposition

Default judgment set aside and defendant permitted to defend.

Orders

  • Set aside the default judgment entered against the defendant on 5 November 2021.
  • Grant leave to the defendant to file a Defence to the Statement of Claim by 31 March 2022.