First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd [2024] NSWSC 92

First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd [2024] NSWSC 92

The default judgment was set aside because the defendant established a bona fide arguable defence based on statutory unconscionability and special disadvantage, connected to the controlling mind of the corporation. Although the explanation for failing to defend was unsatisfactory, the short delay and the interests...

Source-derived case information.

Parties
Plaintiff: First Mortgage Managed Investments Limited; Defendant: Dial-A-Blind (Australia) Pty Ltd
Jurisdiction
Australia
Judgment Date
05 March 2024
Procedural Posture
Civil Procedure Motion to Set Aside Default Judgment / Interlocutory: Application to Set Aside Default Judgment
Outcome
Default judgment set aside; defendant to file defence in amended form; defendant to pay plaintiff's costs of the motion.
Legal Topics
Default Judgment, Setting Aside Judgment, Unconscionable Conduct, Asset Based Lending, Statutory Unconscionability
Civil Procedure Default Judgment Setting Aside Judgment Unconscionable Conduct Asset Based Lending Statutory Unconscionability

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Parties

First Mortgage Managed Investments Limited

Plaintiff

Dial-A-Blind (Australia) Pty Ltd

Defendant

Procedural Posture

Civil Procedure Motion to Set Aside Default Judgment / Interlocutory: Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment should be set aside under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW)
  2. 2 Whether there was irregularity or non-material non-disclosure in obtaining the default judgment
  3. 3 Whether the defendant has a bona fide ground of defence based on unconscionability and special disadvantage

Ratio Decidendi

The default judgment was set aside because the defendant established a bona fide arguable defence based on statutory unconscionability and special disadvantage, connected to the controlling mind of the corporation. Although the explanation for failing to defend was unsatisfactory, the short delay and the interests of justice favoured allowing the defendant to defend on the merits. Judgment was not entered irregularly; non-disclosure of an earlier judgment was not material under the circumstances, and the procedural requirements of the UCPR had been met.

Court Disposition

Default judgment set aside; defendant to file defence in amended form; defendant to pay plaintiff's costs of the motion.

Orders

  • Set aside the default judgment given on 6 September 2023 in the sum of $2,050,267.53 pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).
  • The defendant is to file its defence in the form annexed to the affidavit of Nikitas Livisianos sworn 3 November 2023 as modified in para [62] of this judgment.