Akierman Holdings Pty Limited v Dar [2018] NSWDC 178

Akierman Holdings Pty Limited v Dar [2018] NSWDC 178

The default judgment was irregular because Ms Dar was not in default on 24 February 2017: service was taken to have occurred on 30 January 2017 and default could not arise before the end of 27 February 2017. That irregularity justified setting aside the judgment and requiring the plaintiffs to pay the defendant's costs, including the motion costs. Indemnity costs were refused because the defendant did not seek that special order until the hearing, late capitulation alone did not justify indemnity costs, and the defendant had allowed the proceedings to stand for about 12 months without progressing her defence.

Jurisdiction
Australia
Judgment Date
06 April 2018
Procedural Posture
Civil / Notice of Motion to Set Aside Default Judgment and for Costs; Leave to Discontinue Proceedings
Outcome
Default judgment set aside; leave granted to the plaintiffs to discontinue; plaintiffs ordered to pay the defendant's costs of the proceedings including the costs of the notice of motion; indemnity costs refused.
Legal Topics
['default Judgment' 'notice of Discontinuance' 'party/party Costs' 'indemnity Costs' 'service']
['civil Procedure' 'costs'] ['default Judgment' 'notice of Discontinuance' 'party/party Costs' 'indemnity Costs' 'service']

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Procedural Posture

Civil / Notice of Motion to Set Aside Default Judgment and for Costs; Leave to Discontinue Proceedings

Legal Issues

  1. 1 ['Whether the default judgment granted on 24 February 2017 should be set aside.' 'Whether the plaintiffs should have leave to discontinue the proceedings.' "Whether the plaintiffs should pay the defendant's costs of the proceedings and the notice of motion." 'Whether the defendant should receive indemnity costs of the notice of motion.']

Ratio Decidendi

The default judgment was irregular because Ms Dar was not in default on 24 February 2017: service was taken to have occurred on 30 January 2017 and default could not arise before the end of 27 February 2017. That irregularity justified setting aside the judgment and requiring the plaintiffs to pay the defendant's costs, including the motion costs. Indemnity costs were refused because the defendant did not seek that special order until the hearing, late capitulation alone did not justify indemnity costs, and the defendant had allowed the proceedings to stand for about 12 months without progressing her defence.

Court Disposition

Default judgment set aside; leave granted to the plaintiffs to discontinue; plaintiffs ordered to pay the defendant's costs of the proceedings including the costs of the notice of motion; indemnity costs refused.

Orders

  • ['Set aside the default judgment granted 24 February 2017.' 'Grant leave to the plaintiffs to file a notice of discontinuance of the proceedings, that notice to be filed within seven days.' "Plaintiffs to pay the defendant's costs of the proceedings including the costs of the notice of motion." 'Note that the intent...