Mulric P/L v S D Myers P/L & 2 Ors [2001] NSWSC 121

Mulric P/L v S D Myers P/L & 2 Ors [2001] NSWSC 121

The judgments against the second defendant should be set aside because the explanation for delay was adequate and a bona fide defence exists. Justice between the parties requires that the second defendant be given an opportunity to have a trial on the merits. There was no evidence of prejudice to the plaintiff beyond loss of the ex parte judgments.

Jurisdiction
Australia
Judgment Date
13 March 2001
Procedural Posture
Set Aside Default Judgment Motion / Ruling on Motion
Outcome
Application granted; default judgments against the second defendant set aside; each party to pay its own costs.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'adequate Explanation for Delay' 'bona Fide Defence' 'costs']
['civil Procedure'] ['default Judgment' 'setting Aside Judgment' 'adequate Explanation for Delay' 'bona Fide Defence' 'costs']

Case Brief

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Procedural Posture

Set Aside Default Judgment Motion / Ruling on Motion

Legal Issues

  1. 1 ['Whether the default judgments entered against the second and third defendants should be set aside' 'Whether there was an adequate explanation for delay by the defendants' 'Whether the second defendant has a bona fide defence']

Ratio Decidendi

The judgments against the second defendant should be set aside because the explanation for delay was adequate and a bona fide defence exists. Justice between the parties requires that the second defendant be given an opportunity to have a trial on the merits. There was no evidence of prejudice to the plaintiff beyond loss of the ex parte judgments.

Court Disposition

Application granted; default judgments against the second defendant set aside; each party to pay its own costs.

Orders

  • ['The judgments entered on 13 October 2000 and 1 November 2000 against the second defendant are set aside.' 'Each party (namely the plaintiff and second and third defendants) are to pay their own costs of the motion.']