Violi v Commonwealth Bank of Australia

[2015] NSWCA 152

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Default judgment
3. › Setting aside default judgment
4. › Irregularly entered judgment
5. › Whether affidavit in support complied with requirements for stating when and how originating process was served
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 16.6(2)(f), 35.8(2)(a), 36.15(1)
1. Practice and Procedure
2. › Default judgment
3. › Setting aside default judgment
4. › Discretionary considerations
5. › Whether absence of adequate explanation for delay precludes setting aside judgment
6. › Whether interests of justice require defendant be permitted to defend on merits
7. › Balancing strength of proposed defence against delay
1. Practice and Procedure
2. › Service of originating process
3. › Substituted service
4. › Compliance with orders for substituted service
5. › Whether affidavit of service must state facts demonstrating compliance rather than merely asserting legal conclusion
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 10.14, 16.6(2)(f), 35.8(2)(a)
1. Practice and Procedure
2. › Appeal
3. › New points on appeal
4. › Whether pure question of law may be raised for first time on appeal
5. › Whether party bound by concessions made at trial

Quick Take

An affidavit in support of an application for default judgment that merely asserts service was effected 'in accordance with the order for substituted service' without stating the facts demonstrating compliance does not satisfy UCPR r 16.6(2)(f), rendering the judgment irregularly entered. The absence of a satisfactory explanation for delay does not necessarily preclude setting aside a default judgment; the ultimate question is whether the interests of justice require the defendant be permitted to defend on the merits, which requires balancing the strength of the proposed defence against the delay. Cascading substituted service orders using 'if this is not possible' language should be avoided as they create unacceptable uncertainty.