Gall v Pham (No. 2) [2019] NSWSC 1294

Gall v Pham (No. 2) [2019] NSWSC 1294

It is not unjust to the defendant to allow the orders of 13 November 2015 to stand. The orders were regularly made after notice was given and an opportunity to participate provided. The defendant’s explanations for non-attendance and delay were unsatisfactory, no strong defence was shown, and the principle of finality in litigation militated against setting aside the judgment.

Jurisdiction
Australia
Judgment Date
27 September 2019
Procedural Posture
Notice of Motion to Set Aside Prior Orders / Post Judgment, Application to Set Aside Judgment/orders
Outcome
Defendant's notice of motion to set aside orders dismissed with costs.
Legal Topics
['setting Aside Judgments' 'notice of Motion' 'finality of Litigation' 'default Judgments' 'discretionary Relief']
['civil Procedure' 'equity'] ['setting Aside Judgments' 'notice of Motion' 'finality of Litigation' 'default Judgments' 'discretionary Relief']

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

Notice of Motion to Set Aside Prior Orders / Post Judgment, Application to Set Aside Judgment/orders

Legal Issues

  1. 1 ['Whether the Court should exercise discretion under UCPR r 36.16(2)(b) to set aside orders made in the absence of the defendant' 'Whether it would be unjust to let the perfected order stand against the defendant' 'Whether the defendant had a reasonable opportunity to appear and present his case' "Adequacy of the defendant's explanation for his absence and delay" "Whether the defendant's proposed defence is fairly arguable"]

Ratio Decidendi

It is not unjust to the defendant to allow the orders of 13 November 2015 to stand. The orders were regularly made after notice was given and an opportunity to participate provided. The defendant’s explanations for non-attendance and delay were unsatisfactory, no strong defence was shown, and the principle of finality in litigation militated against setting aside the judgment.

Court Disposition

Defendant's notice of motion to set aside orders dismissed with costs.

Orders

  • ['Notice of motion to set aside orders made as reported in Risa Gall v Andrew Minh Luan Pham [2015] NSWSC 1710 is dismissed with costs.' 'Funds of the defendant held in court in the Commonwealth Bank proceedings to be paid out to the plaintiff (subject to further hearing on whether this is limited to $186,180.53 or...