Lau v Citic Australia Commodity Trading Pty Ltd

[1999] VSCA 34

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Default judgment
3. › Setting aside
4. › Principles governing exercise of discretion
5. › Whether applicant must demonstrate 'arguable defence' or 'triable conflict of fact'
6. › Whether judge may assess credibility of applicant's evidence
7. › Distinction between finding no material to support defence and finding material lacks weight or credibility
1. Practice and Procedure
2. › Default judgment
3. › Setting aside
4. › Conditions
5. › Whether payment into court should be required as condition of setting aside judgment
6. › Whether conditions appropriate where arguable defence demonstrated and explanation for default accepted

Quick Take

On an application to set aside a default judgment, the court must not assess the credibility or weight of the applicant's evidence; the test is whether the applicant has shown an arguable defence on the merits, not whether there is a 'triable conflict of fact'. The 'palpable sham' threshold is the only basis on which a court may reject the applicant's version of events at this stage. Where an arguable defence is demonstrated and the explanation for default is accepted, no condition of payment into court should be imposed.