Driat Pty Ltd v Thomas [2012] NSWSC 71

Driat Pty Ltd v Thomas [2012] NSWSC 71

The First Defendant provided an adequate explanation for the failure to respond to the proceedings by relying on the assurances of the Second Defendant. Further, although her defences based on the Contracts Review Act 1980 or equitable unconscionability are weak, they are nevertheless arguable, raising questions as to the business purpose of the loans and the nature of the asset-based lending. In the interlocutory context, this suffices to set aside the default judgment.

Jurisdiction
Australia
Judgment Date
03 February 2012
Procedural Posture
Interlocutory Application / Application to Set Aside Default Judgment
Outcome
Default judgment set aside; costs awarded to Plaintiff; writs of possession set aside; directions made for filing of evidence and cross-claims.
Legal Topics
['setting Aside Default Judgment' 'contracts Review Act 1980' 'unconscionability' 'asset Based Lending' 'business Purposes Declarations']
['contract Law' 'equity' 'credit Law'] ['setting Aside Default Judgment' 'contracts Review Act 1980' 'unconscionability' 'asset Based Lending' 'business Purposes Declarations']

Case Brief

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Procedural Posture

Interlocutory Application / Application to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the First Defendant has provided an adequate explanation for not responding to the statement of claim' 'Whether the First Defendant has an arguable defence under the Contracts Review Act 1980 and/or equitable unconscionability' 'Whether loans were for business purposes so as to exclude relief under the Contracts Review Act 1980' 'Whether asset-based lending and absence of checks on borrowing capacity constitute an arguable defence']

Ratio Decidendi

The First Defendant provided an adequate explanation for the failure to respond to the proceedings by relying on the assurances of the Second Defendant. Further, although her defences based on the Contracts Review Act 1980 or equitable unconscionability are weak, they are nevertheless arguable, raising questions as to the business purpose of the loans and the nature of the asset-based lending. In the interlocutory context, this suffices to set aside the default judgment.

Court Disposition

Default judgment set aside; costs awarded to Plaintiff; writs of possession set aside; directions made for filing of evidence and cross-claims.

Orders

  • ['Default judgment against the First Defendant of 7 November 2011 is set aside.' 'The First Defendant is to pay the costs of the Motion and costs thrown away by reason of obtaining the judgment.' 'Writs of possession issued on 10 November 2011 are set aside.' 'The First Defendant is ordered to file and serve any...