Bidmonta v McMillan [2010] NSWSC 580

Bidmonta v McMillan [2010] NSWSC 580

The Court found the second defendant had an arguable defence to the claim and adequately explained delay; accordingly, the default judgment was set aside, and leave was granted to file and serve a defence and cross claim.

Parties
Plaintiff: Bidmonta Pty Limited; First Defendant: Debra Kay McMillan; Second Defendant: David Robert McMillan; Third Defendant: Bobbette Lee McMillan; Fourth Defendant: Commonwealth Bank of Australia; Fifth Defendant: Perpetual Limited; Sixth Defendant: Perpetual Trustees Victoria Limited
Jurisdiction
Australia
Judgment Date
04 June 2010
Procedural Posture
Civil / Interlocutory Application Regarding Notices of Motion; Setting Aside Default Judgment
Outcome
Default judgment set aside; leave granted to file defence and cross claim; notice of motion for summary judgment dismissed; costs orders made.
Legal Topics
Default Judgment, Setting Aside Judgment, Mortgages, Guarantees, Consumer Credit Code, Enforcement of Guarantee, Costs
Civil Procedure Property Law Consumer Credit Law Default Judgment Setting Aside Judgment Mortgages Guarantees Consumer Credit Code +2 more

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Parties

Bidmonta Pty Limited

Plaintiff

Debra Kay McMillan

First Defendant

David Robert McMillan

Second Defendant

Bobbette Lee McMillan

Third Defendant

Commonwealth Bank of Australia

Fourth Defendant

Perpetual Limited

Fifth Defendant

Perpetual Trustees Victoria Limited

Sixth Defendant

Procedural Posture

Civil / Interlocutory Application Regarding Notices of Motion; Setting Aside Default Judgment

Legal Issues

  1. 1 Whether default judgment against the second defendant should be set aside
  2. 2 Whether leave should be granted to the second defendant to file a defence and cross claim
  3. 3 Whether summary judgment should be granted to the plaintiff

Ratio Decidendi

The Court found the second defendant had an arguable defence to the claim and adequately explained delay; accordingly, the default judgment was set aside, and leave was granted to file and serve a defence and cross claim.

Court Disposition

Default judgment set aside; leave granted to file defence and cross claim; notice of motion for summary judgment dismissed; costs orders made.

Orders

  • Set aside the default judgment dated 17 November 2009.
  • Grant leave to the second defendant to file and serve a defence by 4.00pm on 11 June 2010. The defence to be in the form of the document in Annexure I to the second defendant's affidavit sworn 9 March 2010.