Appeal made pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic)
Defendants sought to set aside judgment entered against them in default of appearance
Quick Take
1A defendant seeking to set aside a default judgment must file an affidavit setting out the defences relied upon and the facts establishing them; mere assertions or allegations without supporting evidence do not demonstrate a reasonably arguable defence, even at the interlocutory stage.
2An appellate court will not permit a party to use an appeal to cure self-made evidentiary deficiencies by adducing material that was available but not used at first instance; the fact that a self-represented litigant did not appreciate the relevance of available evidence provides no basis for admitting it on appeal.
3Whether the test for admitting fresh evidence on appeal from an Associate Judge is Clark v Stingel or the less restrictive 'exceptional circumstances' test in Chiodo Investments Pty Ltd v Rilac Pty Ltd was left open, though the court preferred to apply Chiodo without deciding the question generally.
