Bendigo and Adelaide Bank Ltd v Dimitrov [2018] NSWDC 152

Bendigo and Adelaide Bank Ltd v Dimitrov [2018] NSWDC 152

Although the Court inferred that the plaintiff applied for default judgment when it did in order to close off the defendant's opportunity to have the Financial Ombudsman Service re-open the dispute after Pekell, that conduct was not irregular, illegal or against good faith within r 36.15. However, under r 36.16 the default judgment should be set aside because default and delay were not in issue, the proposed Amended Defence disclosed arguable defences on the merits, and the plaintiff's contention that the Victorian settlement deed released those defences and cross-claims required evidence and could not be determined merely from the deed on the motion.

Jurisdiction
Australia
Judgment Date
15 June 2018
Procedural Posture
Civil / Notice of Motion by Defendant to Set Aside Default Judgment
Outcome
Default judgment set aside; defendant granted leave to file and serve a Defence and Cross-Claim; plaintiff ordered to pay the defendant's costs of the Motion.
Legal Topics
['setting Aside Default Judgment' 'uniform Civil Procedure Rules 2005 (nsw) Rr 36.15 and 36.16' 'good Faith' 'defence on the Merits' 'release and Estoppel' 'financial Ombudsman Service Dispute']
['civil Procedure' 'banking and Finance' 'contract' 'representative Proceedings'] ['setting Aside Default Judgment' 'uniform Civil Procedure Rules 2005 (nsw) Rr 36.15 and 36.16' 'good Faith' 'defence on the Merits' 'release and Estoppel' 'financial Ombudsman Service Dispute']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Notice of Motion by Defendant to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the default judgment was entered irregularly, illegally or against good faith under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the default judgment should be set aside under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether the defendant's proposed defences and cross-claims were barred by the release in the Victorian group proceedings settlement deed."]

Ratio Decidendi

Although the Court inferred that the plaintiff applied for default judgment when it did in order to close off the defendant's opportunity to have the Financial Ombudsman Service re-open the dispute after Pekell, that conduct was not irregular, illegal or against good faith within r 36.15. However, under r 36.16 the default judgment should be set aside because default and delay were not in issue, the proposed Amended Defence disclosed arguable defences on the merits, and the plaintiff's contention that the Victorian settlement deed released those defences and cross-claims required evidence and could not be determined merely from the deed on the motion.

Court Disposition

Default judgment set aside; defendant granted leave to file and serve a Defence and Cross-Claim; plaintiff ordered to pay the defendant's costs of the Motion.

Orders

  • ['Set aside the default judgment entered in favour of the plaintiff against the defendant on 23 May 2016.' 'Grant leave to the defendant to file and serve a Defence and Cross-Claim (if any) within 28 days.' "Order the plaintiff to pay the defendant's costs of this Motion."]