J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors

[2019] NSWCA 283

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Default judgment
3. › Application to set aside
4. › Relevant considerations
5. › Bona fide defence on the merits
6. › Adequate explanation for delay
7. › Length of delay and prejudice
8. › Whether inadequate explanation for delay is an essential precondition or merely a relevant consideration
9. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(a)
1. Practice and Procedure
2. › Default judgment
3. › Application to set aside
4. › Exercise of discretion
5. › Whether refusal to set aside was unreasonable or unjust
6. › Balancing degree of injustice to respective parties
7. › Whether result so unreasonable or unjust as to bespeak error
8. › Civil Procedure Act 2005 (NSW), ss 57, 58, 59
1. Appeal
2. › Interlocutory orders
3. › Leave to appeal
4. › Discretionary decisions on practice and procedure
5. › Standard of appellate review
6. › House v The King error
7. › Special stringency in appeals from procedural discretions
8. › District Court Act 1973 (NSW), s 127(2)(a)
1. Real Property
2. › Real estate agents
3. › Commission
4. › Notice before action
5. › Whether proceedings maintainable without compliance with notice requirement
6. › Property, Stock and Business Agents Act 2002 (NSW), ss 36, 55

Quick Take

An inadequate explanation for delay in filing a defence is a relevant consideration but not an essential precondition to setting aside a default judgment; where the defendant has arguable defences to a substantial portion of the claim, the delay is relatively short, and there is no special prejudice to the plaintiff, the court may vary the default judgment to reflect only the claims for which no bona fide defence exists.