Permanent Custodians Ltd v Daneshyar Enterprise Pty Ltd [2024] NSWSC 1338

Permanent Custodians Ltd v Daneshyar Enterprise Pty Ltd [2024] NSWSC 1338

The Notice of Motion to set aside the default judgment was dismissed because the defendant provided neither a satisfactory explanation for failing to file a defence nor adequate explanation for delay, and failed to demonstrate a bona fide and arguable defence. The suggested defence of unconscionable conduct/relief against forfeiture was found weak and unviable on the facts, and it was not unconscionable for the plaintiff to exercise mortgage enforcement rights after default and proper notice. The balance of justice favoured upholding the default judgment and awarding costs to the plaintiff.

Parties
Plaintiff: Permanent Custodians Ltd; Defendant: Daneshyar Enterprise Pty Ltd
Jurisdiction
Australia
Judgment Date
24 October 2024
Procedural Posture
Application to Set Aside Default Judgment / Hearing and Determination of Notice of Motion
Outcome
Notice of Motion dismissed
Legal Topics
Default Judgment, Setting Aside Judgment, Mortgage Enforcement, Loan Agreement, Restraining Orders, Relief Against Forfeiture, Unconscionable Conduct, Acceleration Clause
Civil Procedure Property Law Banking and Finance Default Judgment Setting Aside Judgment Mortgage Enforcement Loan Agreement Restraining Orders +3 more

Case Brief

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Parties

Permanent Custodians Ltd

Plaintiff

Daneshyar Enterprise Pty Ltd

Defendant

Procedural Posture

Application to Set Aside Default Judgment / Hearing and Determination of Notice of Motion

Legal Issues

  1. 1 Whether the default judgment should be set aside under r 36.16(2)(a) UCPR
  2. 2 Whether there is an adequate explanation for failure to file a defence and for delay
  3. 3 Whether the defendant has a bona fide and arguable defence on the merits (unconscionable conduct/relief against forfeiture)

Ratio Decidendi

The Notice of Motion to set aside the default judgment was dismissed because the defendant provided neither a satisfactory explanation for failing to file a defence nor adequate explanation for delay, and failed to demonstrate a bona fide and arguable defence. The suggested defence of unconscionable conduct/relief against forfeiture was found weak and unviable on the facts, and it was not unconscionable for the plaintiff to exercise mortgage enforcement rights after default and proper notice. The balance of justice favoured upholding the default judgment and awarding costs to the plaintiff.

Court Disposition

Notice of Motion dismissed

Orders

  • The Notice of Motion filed by the defendant on 28 June 2024 is dismissed.
  • The defendant shall pay the plaintiff's costs of the Notice of Motion.