Mei Zhang v Ye Cheng [2018] NSWDC 147

Mei Zhang v Ye Cheng [2018] NSWDC 147

Although the defendant's explanation for delay was not strong and the proposed defence faced difficulties, the alleged threats could arguably amount to threatened tortious conduct and unfair pressure, the statutory defences required examination of all relevant circumstances at trial, the defence was fairly arguable and bona fide, there was no direct evidence of prejudice to the plaintiff, and the relatively short delay and large sum involved made it in the interests of justice to set aside the default judgment on terms.

Jurisdiction
Australia
Judgment Date
08 June 2018
Procedural Posture
Civil Application to Set Aside Default Judgment / Notice of Motion Filed 20 March 2018 by the Defendant Seeking to Set Aside Default Judgment and Consequential Charging and Garnishee Orders
Outcome
Default judgment set aside on condition; charging order and garnishee orders vacated; defendant granted leave to file Defence; costs of the Notice of Motion reserved.
Legal Topics
['default Judgment' 'setting Aside Default Judgment' 'economic Duress' 'contracts Review Act Relief' 'unconscionable Conduct' 'bona Fide Defence' 'delay' 'prejudice' 'charging Orders' 'garnishee Orders']
['civil Procedure' 'contract Law' 'equity' 'consumer Law'] ['default Judgment' 'setting Aside Default Judgment' 'economic Duress' 'contracts Review Act Relief' 'unconscionable Conduct' 'bona Fide Defence' 'delay' 'prejudice' 'charging Orders' 'garnishee Orders']

Case Brief

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Procedural Posture

Civil Application to Set Aside Default Judgment / Notice of Motion Filed 20 March 2018 by the Defendant Seeking to Set Aside Default Judgment and Consequential Charging and Garnishee Orders

Legal Issues

  1. 1 ['Whether the defendant had a bona fide defence on the merits which was fairly arguable.' 'Whether the defendant provided an adequate explanation for failing to file a Defence and for the delay in moving to set aside the default judgment.' 'Whether the plaintiff would suffer prejudice if the default judgment were set aside.' 'Whether it was in the interests of justice to permit the defendant to defend the proceedings on the merits.' 'Whether any order setting aside the default judgment should be made on terms.']

Ratio Decidendi

Although the defendant's explanation for delay was not strong and the proposed defence faced difficulties, the alleged threats could arguably amount to threatened tortious conduct and unfair pressure, the statutory defences required examination of all relevant circumstances at trial, the defence was fairly arguable and bona fide, there was no direct evidence of prejudice to the plaintiff, and the relatively short delay and large sum involved made it in the interests of justice to set aside the default judgment on terms.

Court Disposition

Default judgment set aside on condition; charging order and garnishee orders vacated; defendant granted leave to file Defence; costs of the Notice of Motion reserved.

Orders

  • ['The default judgment entered in favour of the plaintiff against the defendant on 26 October 2017 is set aside on condition that within seven days the defendant pays to the plaintiff the sum of $15,994.52 towards any liability ultimately found in favour of the plaintiff against the defendant.' 'The charging order...