Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd

[2005] NSWCA 331

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside judgment obtained in absence of party
4. › Judgment after hearing on merits in absence of defendant
5. › Onus on defendant to show defence on merits
6. › Whether affidavit verifying defence constitutes evidence
7. › Relevance of prejudice to plaintiff
8. › Appropriate conditions on setting aside
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside judgment obtained in absence of party
4. › Absence due to gross default of solicitor
5. › Whether financial hardship to plaintiff relevant to exercise of discretion
6. › Whether right of appeal adequate alternative remedy
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary judgment in matter of practice and procedure
4. › Whether errors of primary judge were material
5. › House v The King principles applied with special stringency
1. Real Property
2. › Sale of land
3. › Marketing agreement for apartments
4. › Selling fee
5. › Whether marketer acting as real estate agent
6. › Property Stock and Business Agents Act 2002 (NSW), ss 3, 9

Quick Take

An applicant seeking to set aside a judgment obtained after an undefended hearing bears an onus of showing an arguable case on the merits; an affidavit verifying a defence that is not read into evidence cannot function as evidence supporting a defence on the merits. Financial hardship to the plaintiff is relevant to the exercise of discretion to set aside the judgment, at least to the extent of requiring greater clarity in the demonstration of a defence on the merits, and is also relevant to the conditions imposed on setting aside. The House v The King principles apply with special stringency to appeals from discretionary judgments in matters of practice and procedure.