Horton & Anor v Padoani [2022] NSWDC 27

District Court New South Wales

Medium Neutral Citation: Horton & Anor v Padoani [2022] NSWDC 27 Hearing dates: 17 February 2022 Date of orders: 25 February 2022 Decision date: 25 February 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Vacate the order made on 21 September 2021 that the Defence filed on 18 May 2021 be struck out and judgment be entered for the plaintiffs with damages to be assessed. (2) Set aside the judgment entered on 21 September 2021 in favour of the plaintiffs for damages to be assessed. (3) Order the defendant to pay the costs of the plaintiffs of the Notice of Motion filed by the defendant on 5 October 2021. (4) The parties are at liberty to approach the Registry to obtain a further date for a listing before the Judicial Registrar. Catchwords: PROCEDURE – application to set aside default judgment and reinstate the defendant's defence – whether there is a defence on the merits – whether there is an adequate explanation for delay and default COSTS – where the need for the application was a result of the defendant's former solicitor's conduct – whether costs should be ordered on an ordinary or indemnity basis in favour of plaintiffs – whether costs should be made payable forthwith or at the conclusion of the proceedings Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 12.7, 36.16, 42.7 Practice Note DC (Civil) No. 1B, par 3.6 Cases Cited: Cohen v McWilliam (1995) 38 NSWLR 476 Category: Procedural rulings Parties: Richard Horton (First Plaintiff) Ben Horton (Second Plaintiff) Alida Padoani (Defendant) Representation: Counsel: J Sheller SC (Plaintiffs) A Rogers (Defendant)