Paul Springthorpe trading as Atanaskovic Hartnell; v Australian Style Group Pty Ltd [2021] NSWDC 471

Paul Springthorpe trading as Atanaskovic Hartnell; v Australian Style Group Pty Ltd [2021] NSWDC 471

Although defendants failed in procedural obligations and did not attend after proper notice, justice requires the default judgment be set aside, subject to filing an amended defence and payment of plaintiff’s wasted costs, as prejudice to plaintiff can be remedied by a costs order and the matter is close to readiness for hearing.

Parties
Plaintiff: Paul Springthorpe trading as Atanaskovic Hartnell; First Defendant: Australian Style Group Pty Ltd; Second Defendant: Australian Style Holdings Pty Ltd; Third Defendant: Nicholas Francis Bolton
Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Civil / Application to Set Aside Default Judgment
Outcome
Default judgment set aside on condition that defendants file amended defence by 7 September 2021; costs ordered against defendants.
Legal Topics
Default Judgment, Setting Aside Judgment, Address for Service, Party Notice Requirements, Costs Order
Civil Procedure Default Judgment Setting Aside Judgment Address for Service Party Notice Requirements Costs Order

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Parties

Paul Springthorpe trading as Atanaskovic Hartnell

Plaintiff

Australian Style Group Pty Ltd

First Defendant

Australian Style Holdings Pty Ltd

Second Defendant

Nicholas Francis Bolton

Third Defendant

Procedural Posture

Civil / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether default judgment should be set aside for want of notice to defendants
  2. 2 Whether defendants' conduct of proceedings warranted summary dismissal
  3. 3 Appropriate costs order for plaintiff’s disbursements

Ratio Decidendi

Although defendants failed in procedural obligations and did not attend after proper notice, justice requires the default judgment be set aside, subject to filing an amended defence and payment of plaintiff’s wasted costs, as prejudice to plaintiff can be remedied by a costs order and the matter is close to readiness for hearing.

Court Disposition

Default judgment set aside on condition that defendants file amended defence by 7 September 2021; costs ordered against defendants.

Orders

  • Default judgment entered on 6 August 2021 set aside pursuant to UCPR r 36.16(2) and r 36.16(3A), conditional on defendants filing amended defence by 7 September 2021.
  • Plaintiff to file reply to amended defence by 20 September 2021.