Secure Funding Pty Ltd v Stark Secure Funding Pty Ltd v Conway [2013] NSWSC 1729

Secure Funding Pty Ltd v Stark Secure Funding Pty Ltd v Conway [2013] NSWSC 1729

The Court found that the Starks and Mr Conway had provided an adequate explanation for their procedural delay, and raised an arguable defence—namely, that they may have suffered loss as a result of alleged unconscionable conduct by Secure Funding under the ASIC Act. Though prior applications did not advance this defence, the circumstances (including new legal advice and related Commercial List proceedings) justified a fresh consideration. The circumstances were sufficiently intertwined that the defence was not merely a third-party claim. The applications to set aside default judgments were not an abuse of process and justice required allowing the matters to proceed to hearing on their...

Jurisdiction
Australia
Judgment Date
28 November 2013
Procedural Posture
Application to Set Aside Default Judgment, Possession Proceedings / Application Determined, Orders Setting Aside Default Judgment and Joining Matters Made
Outcome
Default judgments in Secure Funding Pty Ltd v John Charles Stark & Jennifer Gloria Stark and Secure Funding Pty Ltd v Rex Anthony Conway set aside; directions for defence and hearing of the matters together; costs reserved.
Legal Topics
['setting Aside Default Judgment' 'abuse of Process' 'unconscionable Conduct' 'defences Under ASIC Act and Competition and Consumer Act']
['civil Procedure' 'commercial Law'] ['setting Aside Default Judgment' 'abuse of Process' 'unconscionable Conduct' 'defences Under ASIC Act and Competition and Consumer Act']

Case Brief

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Procedural Posture

Application to Set Aside Default Judgment, Possession Proceedings / Application Determined, Orders Setting Aside Default Judgment and Joining Matters Made

Legal Issues

  1. 1 ['Whether there is sufficient cause to set aside default judgments under UCPR 36.16' 'Whether the defendants have an arguable defence, particularly under the Australian Securities and Investments Commission Act 2001 (Cth) and Competition and Consumer Act 2010 (Cth)' 'Whether the applications constitute an abuse of process']

Ratio Decidendi

The Court found that the Starks and Mr Conway had provided an adequate explanation for their procedural delay, and raised an arguable defence—namely, that they may have suffered loss as a result of alleged unconscionable conduct by Secure Funding under the ASIC Act. Though prior applications did not advance this defence, the circumstances (including new legal advice and related Commercial List proceedings) justified a fresh consideration. The circumstances were sufficiently intertwined that the defence was not merely a third-party claim. The applications to set aside default judgments were not an abuse of process and justice required allowing the matters to proceed to hearing on their...

Court Disposition

Default judgments in Secure Funding Pty Ltd v John Charles Stark & Jennifer Gloria Stark and Secure Funding Pty Ltd v Rex Anthony Conway set aside; directions for defence and hearing of the matters together; costs reserved.

Orders

  • ['In proceedings 2013/62391 Secure Funding Pty Ltd v Rex Anthony Conway: (1) The default judgment entered on 2 July 2013 is set aside. (2) The defendant is to file and serve a defence within 14 days.' 'In proceedings 2012/266739 Secure Funding Pty Ltd v John Charles Stark and Jennifer Gloria Stark: (3) The default...