Emmanuel Paneras & Anor v Eastern Suburbs Property Developments Pty Ltd & 3 Ors [2009] NSWSC 105

Emmanuel Paneras & Anor v Eastern Suburbs Property Developments Pty Ltd & 3 Ors [2009] NSWSC 105

The judgment was set aside because it was entered irregularly under procedural rules and the applicant demonstrated both an explanation for failure to defend and the existence of an arguable defence on the merits including agreement or estoppel; interest of justice required allowing the applicant to file and serve a defence.

Parties
Plaintiff: Emmanuel Paneras; Plaintiff: Lea Pailas; First Defendant: Eastern Suburbs Property Developments Pty Ltd; Second Defendant: Socrates Scott Kitas; Third Defendant: John Katerinis; Fourth Defendant: Anthony Burns
Jurisdiction
Australia
Judgment Date
04 March 2009
Procedural Posture
Application to Set Aside Judgment / Post Judgment, Notice of Motion
Outcome
judgment set aside; leave granted to file and serve a defence
Legal Topics
Application to Set Aside Judgment, Default Judgment, Summary Judgment, Estoppel, Agreement, Interpretation of Rule 36.16(3 A), Explanation for Failure to Defend Proceedings, Arguable and Bona Fide Defence
Practice and Procedure Application to Set Aside Judgment Default Judgment Summary Judgment Estoppel Agreement Interpretation of Rule 36.16(3 A) Explanation for Failure to Defend Proceedings +1 more

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Parties

Emmanuel Paneras

Plaintiff

Lea Pailas

Plaintiff

Eastern Suburbs Property Developments Pty Ltd

First Defendant

Socrates Scott Kitas

Second Defendant

John Katerinis

Third Defendant

Anthony Burns

Fourth Defendant

Procedural Posture

Application to Set Aside Judgment / Post Judgment, Notice of Motion

Legal Issues

  1. 1 Whether the judgment entered against the third defendant should be set aside
  2. 2 Whether original judgment was summary or default judgment
  3. 3 Whether procedural irregularity exists

Ratio Decidendi

The judgment was set aside because it was entered irregularly under procedural rules and the applicant demonstrated both an explanation for failure to defend and the existence of an arguable defence on the merits including agreement or estoppel; interest of justice required allowing the applicant to file and serve a defence.

Court Disposition

judgment set aside; leave granted to file and serve a defence

Orders

  • Pursuant to UCPR 36.16(2) the judgment of Malpass AsJ of 19 February 2008 is set aside.
  • Leave is granted to the third defendant to file and serve a defence within 7 days of the date of this judgment.