PJ Scahill & Associates Pty Ltd v Mertes [2016] NSWSC 1470

PJ Scahill & Associates Pty Ltd v Mertes [2016] NSWSC 1470

The notice of motion to set aside the 12 November 2015 judgment was dismissed because the defendants did not establish an arguable defence. On the proper construction of the terms of settlement, the unpaid portion of the costs amount formed part of the undischarged sum for which judgment could be entered, so the calculation challenge failed. The terms of settlement did not arguably embody a penalty because an acknowledgement of the higher indebtedness could be implicit, particularly in light of the amount claimed in the 2010 proceedings, and Paciocco v ANZ Banking Group Limited (2016) HCA 28 did not cast doubt on that analysis.

Jurisdiction
Australia
Judgment Date
10 October 2016
Procedural Posture
Common Law Proceedings Involving Notices of Motion in Mortgage Possession Proceedings and an Application to Set Aside a Default Judgment / Interlocutory Notice of Motion; Ex Tempore Judgment on 10 October 2016
Outcome
Defendants granted leave to file and serve an amended defence, but the defendants' notice of motion filed 9 August 2016 was otherwise dismissed with costs of that motion payable to the plaintiff.
Legal Topics
['application to Set Aside Default Judgment' 'arguable Defence Requirement' 'construction of Terms of Settlement' 'penalty Doctrine' 'possession Proceedings Under Mortgages']
['civil Procedure' 'judgments and Orders' 'mortgage Enforcement' 'contract Law'] ['application to Set Aside Default Judgment' 'arguable Defence Requirement' 'construction of Terms of Settlement' 'penalty Doctrine' 'possession Proceedings Under Mortgages']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Proceedings Involving Notices of Motion in Mortgage Possession Proceedings and an Application to Set Aside a Default Judgment / Interlocutory Notice of Motion; Ex Tempore Judgment on 10 October 2016

Legal Issues

  1. 1 ["Whether the defendants' notice of motion should be treated as brought in the 2010 proceedings so the Court could consider setting aside the 12 November 2015 judgment." 'Whether there was an arguable defence based on the construction of the terms of settlement and the calculation of the $730,000 judgment debt.' 'Whether the terms of settlement embodied a penalty.' 'Whether delay needed to be considered if no arguable defence was established.']

Ratio Decidendi

The notice of motion to set aside the 12 November 2015 judgment was dismissed because the defendants did not establish an arguable defence. On the proper construction of the terms of settlement, the unpaid portion of the costs amount formed part of the undischarged sum for which judgment could be entered, so the calculation challenge failed. The terms of settlement did not arguably embody a penalty because an acknowledgement of the higher indebtedness could be implicit, particularly in light of the amount claimed in the 2010 proceedings, and Paciocco v ANZ Banking Group Limited (2016) HCA 28 did not cast doubt on that analysis.

Court Disposition

Defendants granted leave to file and serve an amended defence, but the defendants' notice of motion filed 9 August 2016 was otherwise dismissed with costs of that motion payable to the plaintiff.

Orders

  • ['On or before 7 November 2016, the defendants file and serve an amended defence.' "The defendants' notice of motion filed 9 August 2016 be otherwise dismissed." "In respect of the notice of motion filed by the defendants dated 9 August 2016, the defendants are to pay the plaintiff's cost of that motion." "There be...