Application to set aside judgment obtained in default of appearance
Defendant claimed judgment entered irregularly because writ and statement of claim not served personally
Plaintiff relied on agreement for service contained in Memorandum of Common Provisions attached to registered Mortgage
Quick Take
1A clause in a mortgage memorandum of common provisions that expressly contemplates service of 'court originating process' constitutes an agreement for service under r 6.14, and service by post to the borrower's 'last address known to' the lender is valid even where the borrower has expressed a preference for email communication, absent an express agreement varying the service clause.
2A borrower's allegation that a lender failed to take reasonable steps to verify the borrower's financial situation under responsible lending obligations (NCCP Act ss 128–133) can constitute a prima facie defence sufficient to set aside default judgment for interest and costs, even where the borrower's evidence is weak and inconsistent, because the strength of the defence is not to be assessed on a set-aside application.
3Where a defendant shows a prima facie defence but fails to explain the default of appearance and has delayed in applying, the court may impose stringent conditions including indemnity costs, security for costs paid into court, and a stay on the set-aside order pending provision of security.
Case Details
Citation[2026] VSC 7
CourtVSC
JurisdictionVictoria
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