Hillsan Pty Limited v Macaulay [2010] NSWSC 244

Hillsan Pty Limited v Macaulay [2010] NSWSC 244

The defendant provided an adequate explanation for her delay because she had notified the plaintiff of her proposed defences during negotiations and acted promptly after learning of the default judgment. Her proposed defences under the Contracts Review Act 1980 and Consumer Credit Code were bona fide defences on their merits, and their success depended on factual conflicts that could only be determined at trial. It was therefore in the interests of justice to set aside both the default judgment and the writ of possession.

Jurisdiction
Australia
Judgment Date
06 April 2010
Procedural Posture
Application to Set Aside Default Judgment and Writ of Possession / Notice of Motion Filed by the Defendant After Default Judgment and Issue of Writ of Possession
Outcome
Default judgment and writ of possession set aside; matter listed for status conference; costs reserved.
Legal Topics
['setting Aside Default Judgment' 'writ of Possession' 'bona Fide Defence on the Merits' 'consumer Credit Code' 'unjust Contracts' 'unconscionable Conduct']
['civil Procedure' 'consumer Credit' 'contracts' 'fair Trading'] ['setting Aside Default Judgment' 'writ of Possession' 'bona Fide Defence on the Merits' 'consumer Credit Code' 'unjust Contracts' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Application to Set Aside Default Judgment and Writ of Possession / Notice of Motion Filed by the Defendant After Default Judgment and Issue of Writ of Possession

Legal Issues

  1. 1 ['Whether the default judgment entered against the defendant on 20 November 2009 should be set aside.' 'Whether the writ of possession issued on 2 December 2009 should be set aside.' 'Whether the defendant gave an adequate explanation for the failure to file a defence before default judgment was entered.' 'Whether the defendant had a bona fide defence on the merits under the Consumer Credit Code, Trade Practices Act 1974 (Cth), Fair Trading Act 1987 and Contracts Review Act 1980.']

Ratio Decidendi

The defendant provided an adequate explanation for her delay because she had notified the plaintiff of her proposed defences during negotiations and acted promptly after learning of the default judgment. Her proposed defences under the Contracts Review Act 1980 and Consumer Credit Code were bona fide defences on their merits, and their success depended on factual conflicts that could only be determined at trial. It was therefore in the interests of justice to set aside both the default judgment and the writ of possession.

Court Disposition

Default judgment and writ of possession set aside; matter listed for status conference; costs reserved.

Orders

  • ['The default judgment entered on 20 November 2009 is set aside.' 'The writ of possession issued on 2 December 2009 is set aside.' 'The matter is listed for a status conference before the Registrar on 30 April 2010 at 9.00 am.' 'Costs are reserved.']