Atlanta Building Pty Ltd v Abela (No 2) [2024] NSWSC 1510

Atlanta Building Pty Ltd v Abela (No 2) [2024] NSWSC 1510

Orders striking out Mr Abela's List Response and cross claim and entering default judgment must be set aside due to procedural irregularity regarding service of the notice of listing and the existence of an arguable defence; Mr Abela's mental health condition provided a reasonable explanation for non-engagement with proceedings.

Parties
Plaintiff: Atlanta Building Pty Ltd; First Defendant: David Abela; Second Defendant: Rebecca Amos
Jurisdiction
Australia
Judgment Date
27 November 2024
Procedural Posture
Equity Technology and Construction List / Application to Set Aside Orders Striking Out List Response and Entering Default Judgment
Outcome
Orders striking out First Defendant's List Response and cross claim and entering default judgment are set aside.
Legal Topics
Default Judgment, Setting Aside Judgment, Service Requirements, Personal Insolvency
Civil Procedure Default Judgment Setting Aside Judgment Service Requirements Personal Insolvency

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Parties

Atlanta Building Pty Ltd

Plaintiff

David Abela

First Defendant

Rebecca Amos

Second Defendant

Procedural Posture

Equity Technology and Construction List / Application to Set Aside Orders Striking Out List Response and Entering Default Judgment

Legal Issues

  1. 1 Whether orders striking out the First Defendant's list response and cross claim and entering default judgment should be set aside
  2. 2 Whether notice of listing should be served three business days before hearing date
  3. 3 Impact of mental health and insolvency on engagement with proceedings

Ratio Decidendi

Orders striking out Mr Abela's List Response and cross claim and entering default judgment must be set aside due to procedural irregularity regarding service of the notice of listing and the existence of an arguable defence; Mr Abela's mental health condition provided a reasonable explanation for non-engagement with proceedings.

Court Disposition

Orders striking out First Defendant's List Response and cross claim and entering default judgment are set aside.

Orders

  • Set aside orders made on 13 September 2024 striking out Mr Abela's List Response, Cross Summons and Cross List Statement and entering default judgment against him.
  • Court will hear parties as to the terms to attach to the making of those orders, and as to costs.