Bay Bon Investments Pty Ltd v Damevski & Ors [2012] NSWSC 1408

Bay Bon Investments Pty Ltd v Damevski & Ors [2012] NSWSC 1408

The defendants demonstrated a clearly arguable defence that the loan agreement should be set aside on grounds of unconscionability or as unjust under statute, and although their explanation for not defending was not wholly satisfactory, it was sufficient in light of their vulnerability. Therefore, it would not be just for the default judgment to stand.

Jurisdiction
Australia
Judgment Date
07 November 2012
Procedural Posture
Interlocutory Application / Application to Set Aside Default Judgment
Outcome
Application to set aside default judgment granted for third and fourth defendants. Orders for costs and filing directions made.
Legal Topics
['application to Set Aside Default Judgment' 'loan Agreements' 'contracts Review Act' 'principles in Amadio' 'costs Order']
['equity' 'practice and Procedure'] ['application to Set Aside Default Judgment' 'loan Agreements' 'contracts Review Act' 'principles in Amadio' 'costs Order']

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Procedural Posture

Interlocutory Application / Application to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether default judgment should be set aside for third and fourth defendants' 'Whether arguable defence exists under principles in Amadio or the Contracts Review Act 1980 (NSW)' 'Whether there was a satisfactory explanation for failure to defend' 'Appropriate order for costs']

Ratio Decidendi

The defendants demonstrated a clearly arguable defence that the loan agreement should be set aside on grounds of unconscionability or as unjust under statute, and although their explanation for not defending was not wholly satisfactory, it was sufficient in light of their vulnerability. Therefore, it would not be just for the default judgment to stand.

Court Disposition

Application to set aside default judgment granted for third and fourth defendants. Orders for costs and filing directions made.

Orders

  • ['Declarations and orders made on 28 September 2012 set aside.' 'Third and fourth defendants to pay plaintiff’s costs of the notice of motion filed 13 September 2012 on the ordinary basis, without prejudice to further application for indemnity costs at final hearing.' 'Costs of the notice of motion of 29 October...