ANZ Banking Group Pty Ltd v Stonestreet & Anor [2000] NSWSC 589

ANZ Banking Group Pty Ltd v Stonestreet & Anor [2000] NSWSC 589

The motion was dismissed because the defendants did not provide a satisfactory explanation for the delay and did not show a defence on the merits, no pleaded defence having been put before the Court. The Court declined to set aside the substituted service order and held that allowing the default judgment to stand...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 July 2000
Procedural Posture
Application to Set Aside Default Judgment / Notice of Motion Under Part 40 R 9(2) of the Supreme Court Rules
Outcome
Notice of motion dismissed; default judgment allowed to stand; defendants ordered to pay the plaintiff's costs.
Legal Topics
['set Aside Default Judgment' 'substituted Service' 'bona Fide Defence' 'delay' 'bank Guarantee']
['civil Procedure' 'banking and Finance' 'guarantees'] ['set Aside Default Judgment' 'substituted Service' 'bona Fide Defence' 'delay' 'bank Guarantee']

Source-derived case record

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Procedural Posture

Application to Set Aside Default Judgment / Notice of Motion Under Part 40 R 9(2) of the Supreme Court Rules

Legal Issues

  1. 1 ['Whether the default judgment dated 16 December 1999 should be set aside under Part 40 r 9(2) of the Supreme Court Rules.' 'Whether the defendants gave an adequate explanation for their delay in filing a defence.' 'Whether the defendants showed a bona fide defence on the merits.' 'Whether the order for substituted service should be treated as binding and conclusive where the defendants said they did not receive the statement of claim.']

Ratio Decidendi

The motion was dismissed because the defendants did not provide a satisfactory explanation for the delay and did not show a defence on the merits, no pleaded defence having been put before the Court. The Court declined to set aside the substituted service order and held that allowing the default judgment to stand was required to do justice between the parties, particularly given prejudice to the plaintiff from the effect on bankruptcy proceedings.

Court Disposition

Notice of motion dismissed; default judgment allowed to stand; defendants ordered to pay the plaintiff's costs.

Orders

  • ['The notice of motion filed 22 May 2000 is dismissed.' "The defendants are to pay the plaintiff's costs."]