Gunns Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Marks-Isaacs (No 2) [2016] NSWDC 350

Gunns Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Marks-Isaacs (No 2) [2016] NSWDC 350

Mr Marks-Isaacs' lack of knowledge of the hearing was due to his own conduct, the delay in applying to set aside judgment was not adequately explained, and no genuine defence was presented; therefore, it is not unjust for the judgment to remain and the application to set aside the judgment is dismissed.

Parties
Plaintiff: Gunns Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation); Defendant: Simon Marks-Isaacs
Jurisdiction
Australia
Judgment Date
11 November 2016
Procedural Posture
Civil / Application to Set Aside Judgment
Outcome
application dismissed
Legal Topics
Setting Aside Judgment, Notice of Hearing, Explanation of Delay, Defence, Hardship Program, Prejudice, Costs
Practice and Procedure Setting Aside Judgment Notice of Hearing Explanation of Delay Defence Hardship Program Prejudice Costs

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Parties

Gunns Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation)

Plaintiff

Simon Marks-Isaacs

Defendant

Procedural Posture

Civil / Application to Set Aside Judgment

Legal Issues

  1. 1 Whether the judgment given in the absence of the defendant should be set aside.
  2. 2 Whether notice and knowledge of the hearing were sufficient.
  3. 3 Whether the defendant's delay in applying to set aside is justifiable.

Ratio Decidendi

Mr Marks-Isaacs' lack of knowledge of the hearing was due to his own conduct, the delay in applying to set aside judgment was not adequately explained, and no genuine defence was presented; therefore, it is not unjust for the judgment to remain and the application to set aside the judgment is dismissed.

Court Disposition

application dismissed

Orders

  • Dismiss the defendant's notice of motion filed 4 October 2016 and decline to set aside the judgment of 2 April 2015.
  • The defendant pay the costs of and incidental to the notice of motion on an indemnity basis.