Westpac Banking Corporation v Michael Vincent Bourke & Anor [2012] NSWSC 111

Westpac Banking Corporation v Michael Vincent Bourke & Anor [2012] NSWSC 111

The notice of motion to set aside default judgment was dismissed because the defendants failed to prosecute the application promptly, gave unsatisfactory explanations for their absence and delay, caused prejudice and cost to the plaintiff, filed no timely pleaded response, and their proposed commercial list response disclosed no real issue or defence to the plaintiff's straightforward claim under bank facilities and was vague, irrelevant and embarrassing.

Jurisdiction
Australia
Judgment Date
17 February 2012
Procedural Posture
Application to Set Aside Default Judgment / Interlocutory Application by Notice of Motion Dated 9 January 2012
Outcome
Notice of Motion dated 9 January 2012 dismissed with costs.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'commercial List Pleading' 'embarrassing Pleading' 'delay in Prosecuting Application' 'bank Facilities']
['civil Procedure' 'banking and Finance'] ['default Judgment' 'setting Aside Judgment' 'commercial List Pleading' 'embarrassing Pleading' 'delay in Prosecuting Application' 'bank Facilities']

Case Brief

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Procedural Posture

Application to Set Aside Default Judgment / Interlocutory Application by Notice of Motion Dated 9 January 2012

Legal Issues

  1. 1 ['Whether the default judgment entered for the plaintiff against the defendants on 31 August 2010 should be set aside.' "Whether the defendants' delay and failure to prosecute their application should prevent relief." "Whether the defendants' draft commercial list response disclosed any real issue, defence, or cause of action." "Whether the defendants' proposed pleading was embarrassing." 'Whether the matter should be adjourned.']

Ratio Decidendi

The notice of motion to set aside default judgment was dismissed because the defendants failed to prosecute the application promptly, gave unsatisfactory explanations for their absence and delay, caused prejudice and cost to the plaintiff, filed no timely pleaded response, and their proposed commercial list response disclosed no real issue or defence to the plaintiff's straightforward claim under bank facilities and was vague, irrelevant and embarrassing.

Court Disposition

Notice of Motion dated 9 January 2012 dismissed with costs.

Orders

  • ['I dismiss the Notice of Motion dated 9 January 2012.' "I direct that the defendants pay the plaintiff's costs of the Notice of Motion filed on 9 January 2012."]