A defendant seeking to set aside a default judgment must ordinarily file affidavit evidence demonstrating a prima facie defence on the merits; failure to do so, even where the primary judge's reasoning on other issues is flawed, will be fatal to the application. The overriding purpose provisions of the Civil Procedure Act 2005 (NSW) reinforce rather than displace the traditional requirement. Persistent non-compliance with discovery obligations over years of litigation, even if partially remedied, justifies striking out a defence where the defendant remains in substantial default at the time of the application.
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