WRAY v BERNACKI CONSTRUCTIONS PTY LTD [1990] NSWCA 190

WRAY v BERNACKI CONSTRUCTIONS PTY LTD [1990] NSWCA 190

Downs DCJ erred in law by failing to consider all relevant circumstances, including whether the claimant had a bona fide ground of defence, in deciding the application to set aside default judgment; this error appeared on the face of the record, entitling the claimant to certiorari and the quashing of the orders below.

Parties
Claimant: WRAY; First Opponent/defendant Below: Bernacki Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
15 June 1990
Procedural Posture
Application for Certiorari / Appeal From District Court Decision Refusing to Set Aside Default Judgment
Outcome
Application for certiorari granted; orders of Downs DCJ quashed; matter remitted to District Court
Legal Topics
Setting Aside Default Judgments, Error of Law on the Face of the Record, District Court Procedure
Civil Procedure Setting Aside Default Judgments Error of Law on the Face of the Record District Court Procedure

Case Brief

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Parties

WRAY

Claimant

Bernacki Constructions Pty Ltd

First Opponent/defendant Below

Procedural Posture

Application for Certiorari / Appeal From District Court Decision Refusing to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the District Court judge erred in law by failing to consider all relevant circumstances in determining an application to set aside a default judgment
  2. 2 Whether the reasons for judgment form part of the record for the purposes of certiorari

Ratio Decidendi

Downs DCJ erred in law by failing to consider all relevant circumstances, including whether the claimant had a bona fide ground of defence, in deciding the application to set aside default judgment; this error appeared on the face of the record, entitling the claimant to certiorari and the quashing of the orders below.

Court Disposition

Application for certiorari granted; orders of Downs DCJ quashed; matter remitted to District Court

Orders

  • Record of proceedings No 4364/88 called up from the District Court and orders made on 25 August 1989 by Downs DCJ quashed
  • Proceeding returned to the District Court to be dealt with in accordance with law