Custom Coaches (Sales) Pty Ltd v Frankish [2002] NSWSC 795

Custom Coaches (Sales) Pty Ltd v Frankish [2002] NSWSC 795

Although the second defendant adequately explained her failure to attend and there was no undue delay, the judgment could not simply be set aside because the proposed defence did not properly reflect the Batty defence and the evidence did not show what part of the money was used for the first defendant's sole purposes rather than for property in which the second defendant had an interest. The motion was therefore adjourned so the destination of the moneys and the extent of any arguable defence could be investigated.

Jurisdiction
Australia
Judgment Date
30 August 2002
Procedural Posture
Application to Set Aside Judgment Entered After an Ex Parte Hearing / Motion Adjourned for Further Investigation of Proposed Defence and Further Directions
Outcome
Motion to set aside judgment adjourned for further investigation of proposed defence.
Legal Topics
['setting Aside Ex Parte Judgments' 'mareva Relief' 'arguable Defence on the Merits' 'joint Accounts' 'money Received' 'inquiry and Reference Procedure']
['civil Procedure' 'equity'] ['setting Aside Ex Parte Judgments' 'mareva Relief' 'arguable Defence on the Merits' 'joint Accounts' 'money Received' 'inquiry and Reference Procedure']

Case Brief

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Procedural Posture

Application to Set Aside Judgment Entered After an Ex Parte Hearing / Motion Adjourned for Further Investigation of Proposed Defence and Further Directions

Legal Issues

  1. 1 ["Whether the second defendant's explanation for not appearing at the ex parte hearing and any delay justified setting aside the judgment." 'Whether the second defendant demonstrated that, if judgment were set aside, she would file an arguable defence on the merits.' "Whether money paid into a joint account was used for the second defendant's benefit or abstracted by the first defendant and used for his own purposes."]

Ratio Decidendi

Although the second defendant adequately explained her failure to attend and there was no undue delay, the judgment could not simply be set aside because the proposed defence did not properly reflect the Batty defence and the evidence did not show what part of the money was used for the first defendant's sole purposes rather than for property in which the second defendant had an interest. The motion was therefore adjourned so the destination of the moneys and the extent of any arguable defence could be investigated.

Court Disposition

Motion to set aside judgment adjourned for further investigation of proposed defence.

Orders

  • ['Matter stood over to Friday, 20 September at 9.30 am before Hamilton J for further directions.']