Westpac Banking Corporation & Anor v Simon Wakim [2011] NSWSC 414

Westpac Banking Corporation & Anor v Simon Wakim [2011] NSWSC 414

The notice of motion was dismissed because the defendant did not provide a credible or sufficient explanation for his default and delay, the late application prejudiced the plaintiffs, and the proposed defence was not arguable. The alleged implied term was directly inconsistent with express clauses permitting St George to take possession of bailed goods at any time without notice or default, the repudiation contention had no substance, and the consideration under clause 1.1 of the guarantees was provided at execution and was not ongoing.

Jurisdiction
Australia
Judgment Date
10 May 2011
Procedural Posture
Notice of Motion to Set Aside Default Judgment / Hearing of Notice of Motion After Default Judgment Entered on 23 July 2010
Outcome
Notice of motion dismissed. Defendant to pay the plaintiffs' costs of the application.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'guarantees and Indemnities' 'bailment Facility' 'implied Contractual Terms' 'delay' 'prejudice']
['civil Procedure' 'banking and Finance' 'contract Law'] ['default Judgment' 'setting Aside Judgment' 'guarantees and Indemnities' 'bailment Facility' 'implied Contractual Terms' 'delay' 'prejudice']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Default Judgment / Hearing of Notice of Motion After Default Judgment Entered on 23 July 2010

Legal Issues

  1. 1 ['Whether the default judgment should be set aside under Uniform Civil Procedure rule 36.15 due to alleged irregularities in commencement and entry of judgment.' 'Whether non-service of the notice of motion and supporting affidavit meant the default judgment was irregular or procedurally unfair.' 'Whether the defendant had a legitimate explanation for his default and delay in seeking to set aside the default judgment.' "Whether the defendant had a reasonable or arguable defence to the plaintiffs' claim under the guarantees and related facility documents." 'Whether the plaintiffs would be prejudiced by the late application.']

Ratio Decidendi

The notice of motion was dismissed because the defendant did not provide a credible or sufficient explanation for his default and delay, the late application prejudiced the plaintiffs, and the proposed defence was not arguable. The alleged implied term was directly inconsistent with express clauses permitting St George to take possession of bailed goods at any time without notice or default, the repudiation contention had no substance, and the consideration under clause 1.1 of the guarantees was provided at execution and was not ongoing.

Court Disposition

Notice of motion dismissed. Defendant to pay the plaintiffs' costs of the application.

Orders

  • ['The notice of motion filed by the defendant on 2 March 2011 is dismissed.' "The defendant is to pay the plaintiffs' costs of the application."]