Morrison v Smalley [2022] NSWDC 76

District Court New South Wales

Medium Neutral Citation: Morrison v Smalley [2022] NSWDC 76 Hearing dates: 18 March 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Set aside the default judgment entered against the defendant on 5 November 2021. (2) Grant leave to the defendant to file a Defence to the Statement of Claim by 31 March 2022. (3) Order the plaintiff to pay the defendant's costs of the Notice of Motion filed on 18 November 2021. Catchwords: PROCEDURE – application to set aside default judgment – whether judgment entered irregularly – whether there is an explanation why a Defence was not filed – whether there is evidence of a defence on the merits Legislation Cited: Uniform Civil Procedure Rules 2005, rr 36.15, 36.16 Cases Cited: Cohen v McWilliam (1995) 38 NSWLR 476 Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550 Category: Procedural rulings Parties: Angela Joy Morrison (Plaintiff) Andrew Smalley (Defendant) Representation: Counsel: A Oakes (Plaintiff) D Cook SC and J P Nathan (Defendant)

Solicitors: Coetsee Legal (Plaintiff) Simpson Freed (Defendant) File Number(s): 2021/00223171

Judgment

Introduction 1. The plaintiff obtained a default judgment against the defendant on 5 November 2021 for $449,684.96. 2. The defendant filed a Notice of Motion on 18 November 2021 seeking to set aside the default judgment. The defendant relied upon r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and r 36.16 of the UCPR. The defendant sought leave to file a Defence within seven days, if the judgment is set aside. Paragraph 3 of the Notice of Motion, which sought the provision of particulars, was abandoned.