Bendigo and Adelaide Bank Limited v Borg [2016] NSWDC 192

Bendigo and Adelaide Bank Limited v Borg [2016] NSWDC 192

The Statement of Claim omitted material facts needed to make clear the case the defendants had to meet, including the finance applications and authority for execution by attorney, the manner in which the Loan Deeds were signed, the interest provisions and rates, the waiver of overdue interest under the Deed of Settlement, and particulars or a schedule calculating principal and interest. In the context of complex transactions and where the defendants did not have copies of the executed Loan Deeds when a Defence was required, the omissions made the amount claimed unclear and constituted an irregularity under r 36.15(1). In the exercise of discretion, the default judgment was set aside.

Jurisdiction
Australia
Judgment Date
18 August 2016
Procedural Posture
Civil / Notice of Motion by the Defendants to Set Aside Default Judgment and for Leave to File a Defence
Outcome
Default judgment set aside; defendants granted leave to file a Defence; plaintiff granted leave to file an Amended Statement of Claim; costs of the defendants' Notice of Motion to be defendants' costs in the cause.
Legal Topics
['setting Aside Default Judgment' 'irregularity' 'failure to Plead Material Facts' 'exercise of Discretion']
['practice and Procedure' 'civil Procedure'] ['setting Aside Default Judgment' 'irregularity' 'failure to Plead Material Facts' 'exercise of Discretion']

Case Brief

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Procedural Posture

Civil / Notice of Motion by the Defendants to Set Aside Default Judgment and for Leave to File a Defence

Legal Issues

  1. 1 ["Whether the plaintiff's Statement of Claim failed to plead material facts necessary to make clear the case the defendants were required to meet." 'Whether any pleading deficiencies constituted an irregularity within r 36.15(1) of the Uniform Civil Procedure Rules 2005.' 'Whether the Court should exercise its discretion to set aside the default judgment entered on 21 March 2016.']

Ratio Decidendi

The Statement of Claim omitted material facts needed to make clear the case the defendants had to meet, including the finance applications and authority for execution by attorney, the manner in which the Loan Deeds were signed, the interest provisions and rates, the waiver of overdue interest under the Deed of Settlement, and particulars or a schedule calculating principal and interest. In the context of complex transactions and where the defendants did not have copies of the executed Loan Deeds when a Defence was required, the omissions made the amount claimed unclear and constituted an irregularity under r 36.15(1). In the exercise of discretion, the default judgment was set aside.

Court Disposition

Default judgment set aside; defendants granted leave to file a Defence; plaintiff granted leave to file an Amended Statement of Claim; costs of the defendants' Notice of Motion to be defendants' costs in the cause.

Orders

  • ['The judgment entered on 21 March 2016 against the first and second defendants in respect of proceedings 2015/00294816 is set aside.' "The defendants are granted leave to file a Defence in the form exhibited to Mrs Borg's affidavit sworn 4 July 2016 within 14 days." 'The plaintiff is granted leave to file an...