Mango Capital Pty Limited v Patsis [2017] NSWSC 161

Mango Capital Pty Limited v Patsis [2017] NSWSC 161

The default judgment against the first and second defendants was set aside because the plaintiff did not contest that they had an arguable defence, and the Court was satisfied that their reliance on their son and his deceptive conduct provided a sufficient explanation for their failure to file a defence, whether or not personal service had occurred.

Jurisdiction
Australia
Judgment Date
28 February 2017
Procedural Posture
Real Property Possession Proceedings Concerning Mortgages and a Writ of Possession / Notice of Motion by the First and Second Defendants to Stay Execution and Set Aside Default Judgment
Outcome
Default judgment against the first and second defendants set aside; directions made for filing a defence and any cross claim; costs thrown away or occasioned by the application ordered against the first and second defendants.
Legal Topics
['possession of Land' 'mortgages' 'writ of Possession' 'default Judgment' 'setting Aside Default Judgment' 'personal Service' 'fraud']
['real Property' 'civil Procedure'] ['possession of Land' 'mortgages' 'writ of Possession' 'default Judgment' 'setting Aside Default Judgment' 'personal Service' 'fraud']

Case Brief

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Procedural Posture

Real Property Possession Proceedings Concerning Mortgages and a Writ of Possession / Notice of Motion by the First and Second Defendants to Stay Execution and Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the default judgment for possession entered against the first and second defendants should be set aside.' 'Whether the first and second defendants had a satisfactory explanation for failing to file a defence.' 'Whether the first and second defendants had an arguable defence on the merits.' 'Whether personal service of the statement of claim took place and whether that issue was determinative.']

Ratio Decidendi

The default judgment against the first and second defendants was set aside because the plaintiff did not contest that they had an arguable defence, and the Court was satisfied that their reliance on their son and his deceptive conduct provided a sufficient explanation for their failure to file a defence, whether or not personal service had occurred.

Court Disposition

Default judgment against the first and second defendants set aside; directions made for filing a defence and any cross claim; costs thrown away or occasioned by the application ordered against the first and second defendants.

Orders

  • ['The judgment entered against the first and second defendants by default on 29 August 2016 is set aside.' "Direct that the first and second defendants file their defence and any cross claim which they may be instructed to pursue within 21 days of today's date." "Order that the first and second defendants pay the...