Violi v Commonwealth Bank of Australia [2015] NSWCA 152

Violi v Commonwealth Bank of Australia [2015] NSWCA 152

By majority, the default judgment was entered irregularly because the affidavit material did not comply with the UCPR requirements to state facts showing when and how the originating process was served. The primary judge also misunderstood the effect of counsel's concession concerning delay. Although there was no satisfactory explanation for delay, Mr Violi had an arguable defence or claim for relief under the Contracts Review Act 1980 (NSW) arising from the alleged circumstances in which the guarantee was signed. In the interests of justice, the default judgment should be set aside and Mr Violi permitted to defend the Bank's claim.

Jurisdiction
Australia
Judgment Date
02 June 2015
Procedural Posture
Application for Leave to Appeal and Appeal From District Court Order Refusing to Set Aside Default Judgment / Court of Appeal Decision
Outcome
Leave to appeal granted; appeal allowed; District Court orders dismissing the notice of motion and the default judgment set aside; Bank ordered to pay Mr Violi's costs of the application for leave and of the appeal.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'substituted Service' 'affidavit of Service' 'contracts Review Act 1980 (nsw) Defence' 'guarantee']
['civil Procedure' 'contracts'] ['default Judgment' 'setting Aside Judgment' 'substituted Service' 'affidavit of Service' 'contracts Review Act 1980 (nsw) Defence' 'guarantee']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From District Court Order Refusing to Set Aside Default Judgment / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the primary judge misconstrued a concession made by counsel for Mr Violi about delay and the consequence for the application to set aside the default judgment.' 'Whether the default judgment was entered irregularly because the affidavits relied upon for default judgment failed to state when and how the originating process was served as required by the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether Mr Violi should be permitted to raise on appeal irregularities not argued before the primary judge.' 'Whether Mr Violi had an arguable defence or claim for relief under the Contracts Review Act 1980 (NSW).' 'Whether, despite delay, it was in the interests of justice to set aside the default judgment.']

Ratio Decidendi

By majority, the default judgment was entered irregularly because the affidavit material did not comply with the UCPR requirements to state facts showing when and how the originating process was served. The primary judge also misunderstood the effect of counsel's concession concerning delay. Although there was no satisfactory explanation for delay, Mr Violi had an arguable defence or claim for relief under the Contracts Review Act 1980 (NSW) arising from the alleged circumstances in which the guarantee was signed. In the interests of justice, the default judgment should be set aside and Mr Violi permitted to defend the Bank's claim.

Court Disposition

Leave to appeal granted; appeal allowed; District Court orders dismissing the notice of motion and the default judgment set aside; Bank ordered to pay Mr Violi's costs of the application for leave and of the appeal.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' "Set aside the orders made by Balla DCJ on 20 December 2013 dismissing Mr Violi's notice of motion." 'Set aside the default judgment against Mr Violi entered on 9 January 2013.' "The Bank is to pay Mr Violi's costs of the application for leave and of the appeal."]