Australian Lending and Finance Pty Ltd v D & D Properties Australia as trustee for the D & D Property Trust [2021] NSWSC 1110

Australian Lending and Finance Pty Ltd v D & D Properties Australia as trustee for the D & D Property Trust [2021] NSWSC 1110

The Court had power under r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) to extend the time for compliance with the July Orders even after the self-executing consequence had arisen. Although the defendants' conduct was unsatisfactory and unexplained, the delay was only one day, refusing an extension would deprive them of the opportunity to defend significant claims including possession of properties, and the plaintiff identified no prejudice beyond costs and the need to proceed on the merits. The justice of the case required a retrospective extension of time, dismissal of the default judgment motion, reinstatement of the defence, and costs payable by the defendants forthwith.

Jurisdiction
Australia
Judgment Date
01 September 2021
Procedural Posture
Civil Procedure Application Concerning Default Judgment and Self Executing Orders in Equity / On the Papers; Consequential Orders Following Defendants' Late Compliance With Consent Self Executing Orders
Outcome
Time for compliance extended; plaintiff's notice of motion dismissed; defence reinstated; defendants ordered to explain defaults and pay costs.
Legal Topics
['default Judgment' 'self Executing Orders' 'extension of Time' 'reinstatement of Defence' 'costs' 'possession of Mortgaged Properties']
['civil Procedure' 'equity'] ['default Judgment' 'self Executing Orders' 'extension of Time' 'reinstatement of Defence' 'costs' 'possession of Mortgaged Properties']

Case Brief

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Procedural Posture

Civil Procedure Application Concerning Default Judgment and Self Executing Orders in Equity / On the Papers; Consequential Orders Following Defendants' Late Compliance With Consent Self Executing Orders

Legal Issues

  1. 1 ['Whether the Court had power to extend time for compliance with Order 1 made on 22 July 2021 after the time for compliance had expired and after the self-executing consequences had been triggered.' 'Whether the Court should exercise any power under the Uniform Civil Procedure Rules 2005 (NSW) to extend time to 3 August 2021 where the defendants served their evidence one day late.' "Whether the plaintiff's notice of motion for default judgment and possession orders should be dismissed and the defendants' defence reinstated."]

Ratio Decidendi

The Court had power under r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) to extend the time for compliance with the July Orders even after the self-executing consequence had arisen. Although the defendants' conduct was unsatisfactory and unexplained, the delay was only one day, refusing an extension would deprive them of the opportunity to defend significant claims including possession of properties, and the plaintiff identified no prejudice beyond costs and the need to proceed on the merits. The justice of the case required a retrospective extension of time, dismissal of the default judgment motion, reinstatement of the defence, and costs payable by the defendants forthwith.

Court Disposition

Time for compliance extended; plaintiff's notice of motion dismissed; defence reinstated; defendants ordered to explain defaults and pay costs.

Orders

  • ['Extend the time for compliance with Order 1 made on 22 July 2021 to 3 August 2021.' "Dismiss the plaintiff's notice of motion filed 14 July 2021." 'Reinstate the defence struck out pursuant to the May Orders.' "Order the defendants within 7 days to file and serve an affidavit explaining the defendants' default in...