Coleman v Hamilton-Irvine [2014] NFSC 1

Coleman v Hamilton-Irvine [2014] NFSC 1

The default judgment was entered before the close of business on the day the first defendant's time for filing a defence expired, and there was no evidentiary basis to accept that an effective abridgment of time had been granted without notice. In any event, the slight delay, the solicitor's explanation, and the real dispute about the amount of the plaintiff's charges warranted setting aside the judgment and referring the matter to mediation.

Jurisdiction
Australia
Judgment Date
28 February 2014
Procedural Posture
Application to Set Aside Default Judgment in Claim for Legal Fees and Disbursements / Determined on the Papers
Outcome
Default judgment set aside and matter referred to mediation.
Legal Topics
['default Judgment' 'setting Aside Default Judgment' 'service Outside Norfolk Island' 'time for Filing Appearance or Defence' 'mediation' 'taxation of Legal Costs']
['practice and Procedure' 'civil Procedure' 'legal Costs'] ['default Judgment' 'setting Aside Default Judgment' 'service Outside Norfolk Island' 'time for Filing Appearance or Defence' 'mediation' 'taxation of Legal Costs']

Case Brief

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Procedural Posture

Application to Set Aside Default Judgment in Claim for Legal Fees and Disbursements / Determined on the Papers

Legal Issues

  1. 1 ['Whether the default judgment entered on 16 September 2013 was irregular because it was entered before expiry of the time for filing an appearance or defence.' "Whether, if the default judgment was regular, it should nevertheless be set aside in the exercise of the Court's discretion." 'Whether the first defendant had adequately explained any delay and shown an arguable defence.']

Ratio Decidendi

The default judgment was entered before the close of business on the day the first defendant's time for filing a defence expired, and there was no evidentiary basis to accept that an effective abridgment of time had been granted without notice. In any event, the slight delay, the solicitor's explanation, and the real dispute about the amount of the plaintiff's charges warranted setting aside the judgment and referring the matter to mediation.

Court Disposition

Default judgment set aside and matter referred to mediation.

Orders

  • ['The default judgment entered on 16 September 2013 be set aside.' 'The matter be referred to a Registrar or Deputy Registrar of the Court for mediation. The mediation is to be held at a time and place suitable to the parties but in any event no later than 30 March 2013.']