Walter Nazloomian v Commonwealth Bank of Australia Pty Limited and ors [2013] NSWSC 681

Walter Nazloomian v Commonwealth Bank of Australia Pty Limited and ors [2013] NSWSC 681

Saracen Holdings Pty Limited was properly served under the Corporations Act, its director was aware of the proceedings well before judgment, no adequate explanation for default was established, there was insufficient delay causing prejudice, and no bona fide defence on the merits was established, so the application to set aside the default judgment was dismissed.

Parties
Plaintiff: Walter Nazloomian; First Defendant: Commonwealth Bank of Australia Pty Limited; Second Defendant: Nathan Elali; Third Defendant: Saracen Holdings Pty Limited
Jurisdiction
Australia
Judgment Date
04 June 2013
Procedural Posture
Notice of Motion to Set Aside Default Judgment / Decision on Application to Set Aside Default Judgment
Outcome
Application to set aside default judgment dismissed
Legal Topics
Set Aside Default Judgment, Service of Process, Bona Fide Defence, Explanation for Default, Prejudice by Delay
Practice and Procedure Set Aside Default Judgment Service of Process Bona Fide Defence Explanation for Default Prejudice by Delay

Case Brief

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Parties

Walter Nazloomian

Plaintiff

Commonwealth Bank of Australia Pty Limited

First Defendant

Nathan Elali

Second Defendant

Saracen Holdings Pty Limited

Third Defendant

Procedural Posture

Notice of Motion to Set Aside Default Judgment / Decision on Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether defendant was properly served with originating process
  2. 2 Whether adequate explanation for default was given
  3. 3 Whether delay in seeking to set aside judgment caused prejudice

Ratio Decidendi

Saracen Holdings Pty Limited was properly served under the Corporations Act, its director was aware of the proceedings well before judgment, no adequate explanation for default was established, there was insufficient delay causing prejudice, and no bona fide defence on the merits was established, so the application to set aside the default judgment was dismissed.

Court Disposition

Application to set aside default judgment dismissed

Orders

  • The Notice of Motion is dismissed.
  • The third defendant, Saracen Holdings Pty Limited, is to pay the plaintiff's costs.