STEPHEN RESKYMER (KYM) MONKTON v EDWARD ALLAN STEPHENSON & ANOR [2011] NSWSC 67

STEPHEN RESKYMER (KYM) MONKTON v EDWARD ALLAN STEPHENSON & ANOR [2011] NSWSC 67

The Magistrate's failure to set aside the default judgment for quantum of damages was an error of law because judgment was entered for a specific sum in a claim for unliquidated damages without proper assessment or particularisation; therefore, proceedings are to be remitted for assessment of damages.

Jurisdiction
Australia
Judgment Date
23 February 2011
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed
Legal Topics
['default Judgment' 'unliquidated Damages' 'procedural Fairness' 'negligence' 'assessment of Damages']
['civil Procedure' 'torts'] ['default Judgment' 'unliquidated Damages' 'procedural Fairness' 'negligence' 'assessment of Damages']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the Magistrate erred in refusing to set aside default judgment for unliquidated damages' 'Whether default judgment for a specified sum in a claim for unliquidated damages constitutes an irregularity and should be set aside' 'Whether there was an error of law in giving judgment for an insufficiently particularised claim']

Ratio Decidendi

The Magistrate's failure to set aside the default judgment for quantum of damages was an error of law because judgment was entered for a specific sum in a claim for unliquidated damages without proper assessment or particularisation; therefore, proceedings are to be remitted for assessment of damages.

Court Disposition

Appeal allowed

Orders

  • ["The Magistrate's decision and order made on 21 June 2010 are set aside." "The proceedings are remitted to the Local Court for determination of quantum of damages in respect of loss or destruction of the plaintiff's vehicle and any claim for interest." "Unless written submissions are made seeking another order,...