Renwick Street Pty Limited v Parker [2020] NSWDC 552

Renwick Street Pty Limited v Parker [2020] NSWDC 552

The defendant did not establish a fairly arguable defence on the merits because the proposed defence was vague and unclear, no draft defence was provided, there was no affidavit giving the defendant's version of the contractual discussions, and there was no documentary evidence showing payment or explaining how money in a trust account reimbursed the plaintiff. The defendant also failed to provide an adequate explanation for the lengthy delay, particularly after receiving the May 2018 judgment creditor's notice and in the absence of evidence from former solicitors. Overall, it was not in the interests of justice to set aside the default judgment.

Jurisdiction
Australia
Judgment Date
22 September 2020
Procedural Posture
Civil Procedure Application Concerning Default Judgment / Notice of Motion by the Defendant to Set Aside Default Judgment, Set Aside Writ for Levy of Property, and Stay Enforcement
Outcome
The defendant's Notice of Motion was dismissed.
Legal Topics
['default Judgment' 'application to Set Aside Default Judgment' 'bona Fide Defence on the Merits' 'explanation for Delay' 'writ for Levy of Property' "judgment Creditor's Notice" 'jones V Dunkel Inference']
['civil Procedure' 'contract Law' 'judgment Enforcement'] ['default Judgment' 'application to Set Aside Default Judgment' 'bona Fide Defence on the Merits' 'explanation for Delay' 'writ for Levy of Property' "judgment Creditor's Notice" 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

Civil Procedure Application Concerning Default Judgment / Notice of Motion by the Defendant to Set Aside Default Judgment, Set Aside Writ for Levy of Property, and Stay Enforcement

Legal Issues

  1. 1 ['Whether the default judgment entered against the defendant should be set aside under Part 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the defendant established a bona fide defence on the merits which was fairly arguable.' 'Whether the defendant provided an adequate explanation for the delay in seeking to set aside the default judgment.' 'Whether the plaintiff would suffer prejudice if the default judgment were set aside.' 'Whether it was in the interests of justice to permit the defendant to defend the proceedings on the merits.']

Ratio Decidendi

The defendant did not establish a fairly arguable defence on the merits because the proposed defence was vague and unclear, no draft defence was provided, there was no affidavit giving the defendant's version of the contractual discussions, and there was no documentary evidence showing payment or explaining how money in a trust account reimbursed the plaintiff. The defendant also failed to provide an adequate explanation for the lengthy delay, particularly after receiving the May 2018 judgment creditor's notice and in the absence of evidence from former solicitors. Overall, it was not in the interests of justice to set aside the default judgment.

Court Disposition

The defendant's Notice of Motion was dismissed.

Orders

  • ['The Notice of Motion filed 8 July 2020 is dismissed.']