MAGLARAS and ANOR v WESTAWAY PTY LTD [1991] NSWCA 179

MAGLARAS and ANOR v WESTAWAY PTY LTD [1991] NSWCA 179

Judgment entered in the absence of the defendants must be set aside where the materials before the court show an arguable defence on the merits, and the absence of an adequate explanation for non-attendance is not determinative; each application to set aside requires independent consideration as to whether 'sufficient cause' has been shown.

Parties
Appellant: Maglaras and Anor; Respondent: Westaway Pty Ltd
Jurisdiction
Australia
Judgment Date
24 December 1991
Procedural Posture
Appeal / Appeal From Decision Refusing to Set Aside Judgment Entered in Absence of Defendants
Outcome
appeal allowed
Legal Topics
Setting Aside Judgment, Default Judgment, Building Contract Dispute
Civil Procedure Setting Aside Judgment Default Judgment Building Contract Dispute

Case Brief

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Parties

Maglaras and Anor

Appellant

Westaway Pty Ltd

Respondent

Procedural Posture

Appeal / Appeal From Decision Refusing to Set Aside Judgment Entered in Absence of Defendants

Legal Issues

  1. 1 Whether judgment entered in absence of defendants should be set aside
  2. 2 Whether 'sufficient cause' for non-appearance was shown
  3. 3 Whether the merits of a proposed defence justify setting aside judgment

Ratio Decidendi

Judgment entered in the absence of the defendants must be set aside where the materials before the court show an arguable defence on the merits, and the absence of an adequate explanation for non-attendance is not determinative; each application to set aside requires independent consideration as to whether 'sufficient cause' has been shown.

Court Disposition

appeal allowed

Orders

  • Leave to appeal granted
  • Orders made by Garling ADCJ on 7 June 1991 set aside, except those ordering the appellants to pay respondent's costs