Gittany v Gittany [2014] NSWSC 761

Gittany v Gittany [2014] NSWSC 761

The application to set aside the default judgment was refused because the proposed defence was found not to be raised in good faith: Charles Gittany's evidence did not credibly support his contention that the loan was to the company rather than to him personally, and his claims regarding repayments were not supported by evidence. Additionally, there was inadequate explanation for the failure to file a defence, and the requirements under rule 36.16 and the Civil Procedure Act 2005 were not met.

Parties
Plaintiff: Joe Gittany; Defendant: Charles Gittany
Jurisdiction
Australia
Judgment Date
10 June 2014
Procedural Posture
Interlocutory Application / Application to Set Aside Default Judgment
Outcome
Application to set aside default judgment refused
Legal Topics
Default Judgment, Setting Aside Judgment, Good Faith in Defence, Cross Examination in Interlocutory Applications
Civil Procedure Default Judgment Setting Aside Judgment Good Faith in Defence Cross Examination in Interlocutory Applications

Case Brief

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Parties

Joe Gittany

Plaintiff

Charles Gittany

Defendant

Procedural Posture

Interlocutory Application / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether default judgment should be set aside under rule 36.16 of the Uniform Civil Procedure Rules 2005
  2. 2 Whether the proposed defence is raised in good faith
  3. 3 Adequacy of the explanation for failing to file a defence

Ratio Decidendi

The application to set aside the default judgment was refused because the proposed defence was found not to be raised in good faith: Charles Gittany's evidence did not credibly support his contention that the loan was to the company rather than to him personally, and his claims regarding repayments were not supported by evidence. Additionally, there was inadequate explanation for the failure to file a defence, and the requirements under rule 36.16 and the Civil Procedure Act 2005 were not met.

Court Disposition

Application to set aside default judgment refused

Orders

  • That the motion to have the default judgment set aside be dismissed.
  • That the defendant pay the plaintiff's costs of and incidental to the motion.