Arnold v Forsythe [2012] NSWCA 18

Arnold v Forsythe [2012] NSWCA 18

The statement of claim did not plead all material facts necessary to establish a claim for a debt or liquidated claim under the Separation Agreement, and the supporting affidavit did not adequately state the source of the deponent's knowledge. Accordingly, the default judgment was given or entered irregularly within the meaning of UCPR r 36.15(1), warranting that the judgment be set aside.

Jurisdiction
Australia
Judgment Date
23 February 2012
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal allowed
Legal Topics
['default Judgment' 'irregularity in Procedure' 'pleadings' 'setting Aside Judgment' 'liquidated Claim']
['civil Procedure'] ['default Judgment' 'irregularity in Procedure' 'pleadings' 'setting Aside Judgment' 'liquidated Claim']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether the default judgment was entered irregularly due to failure to plead a debt or liquidated claim' "Whether the affidavit in support of default judgment stated the source of the deponent's knowledge as required by the rules" 'Whether a party waived irregularity by not objecting at first instance']

Ratio Decidendi

The statement of claim did not plead all material facts necessary to establish a claim for a debt or liquidated claim under the Separation Agreement, and the supporting affidavit did not adequately state the source of the deponent's knowledge. Accordingly, the default judgment was given or entered irregularly within the meaning of UCPR r 36.15(1), warranting that the judgment be set aside.

Court Disposition

Appeal allowed

Orders

  • ['Appeal allowed.' 'Orders made by Truss DCJ on 4 March 2011 be set aside.' 'The default judgment and orders made by Truss DCJ on 30 September 2010 and 14 October 2010 be set aside.' 'Remit to the District Court for hearing and determination Prayer 2(b) of the notice of appeal dated 19 August 2011.' "The appellant...