Xie v Australian Shopping Town Development Pty Ltd [2010] NSWSC 829

Xie v Australian Shopping Town Development Pty Ltd [2010] NSWSC 829

The Notice of Motion was dismissed because the Defendants did not provide an adequate explanation for the default or for the delay of more than 7 months in filing the motion, and did not establish any defence on the merits. No binding May 2009 agreement to discontinue the proceedings was made; clause 8 of the Loan Agreement made Mr Li's guarantee a continuing obligation unaffected by later variations; the later written arrangements preserved existing rights and acknowledged the guarantee; and there was no evidence that the interest claimed in the Default Judgment was not the correct interest under the Agreement.

Jurisdiction
Australia
Judgment Date
12 August 2010
Procedural Posture
Notice of Motion to Set Aside Default Judgment / Application After Default Judgment Entered on 21 October 2009
Outcome
Application dismissed
Legal Topics
['default Judgment' 'setting Aside Default Judgment' 'loan Agreement' 'guarantee and Indemnity' 'delay' 'defence on the Merits' 'interest']
['civil Procedure' 'contract' 'guarantees'] ['default Judgment' 'setting Aside Default Judgment' 'loan Agreement' 'guarantee and Indemnity' 'delay' 'defence on the Merits' 'interest']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Default Judgment / Application After Default Judgment Entered on 21 October 2009

Legal Issues

  1. 1 ['Whether the Defendants had shown a prima facie good defence on the merits sufficient to set aside the Default Judgment.' 'Whether the Defendants had adequately explained the default that occasioned entry of judgment.' 'Whether the Defendants had adequately explained the delay in filing the Notice of Motion to set aside the Default Judgment.' "Whether an alleged May 2009 agreement, later variations, or disputes about interest or the guarantee provided a defence to the Plaintiffs' claim."]

Ratio Decidendi

The Notice of Motion was dismissed because the Defendants did not provide an adequate explanation for the default or for the delay of more than 7 months in filing the motion, and did not establish any defence on the merits. No binding May 2009 agreement to discontinue the proceedings was made; clause 8 of the Loan Agreement made Mr Li's guarantee a continuing obligation unaffected by later variations; the later written arrangements preserved existing rights and acknowledged the guarantee; and there was no evidence that the interest claimed in the Default Judgment was not the correct interest under the Agreement.

Court Disposition

Application dismissed

Orders

  • ["The Defendants' Notice of Motion filed 19 April 2010 is dismissed." "The Defendants are to pay the Plaintiffs' costs."]