First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd [2024] NSWSC 92

Supreme Court New South Wales

Medium Neutral Citation: First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd [2024] NSWSC 92 Hearing dates: 14 February 2024 Date of orders: 5 March 2024 Decision date: 05 March 2024 Jurisdiction: Common Law Before: Davies J Decision: 1. Set aside the default judgment given on 6 September 2023 in the sum of $2,050,267.53 pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). 2. The defendant is to file its defence in the form annexed to the affidavit of Nikitas Livisianos sworn 3 November 2023 as modified in para [62] of this judgment. 3. The defendant is to pay the plaintiff's costs of the motion. Catchwords: CIVIL PROCEDURE – default judgment – setting aside – proceedings for possession of land and liquidated sum – where company and its director entered into a loan agreement – where earlier judgment had been obtained against the director for possession of other land and for a liquidated sum – where writ of possession executed – non-disclosure and irregularity – whether Court ought to have been notified of prior judgment on an ex parte application for default judgment – whether default judgment entered irregularly by reason of non-disclosure – held information not relevant nor material – requirements of UCPR rr 16.4, 16.8 and 36.8 to obtain default judgment satisfied – no injustice occasioned by failure to provide further information – no irregularity CIVIL PROCEDURE – default judgment – setting aside – bona fide defence on merits – where draft defence relies on statutory unconscionability – asserts defendant under special disadvantage given (1) sole director's advanced age and minimal income and (2) loss made in the 2022 tax year – where nothing about the defendant's position in 2022 was provided to the plaintiff – whether general law concept of special disadvantage applies to a corporation – not unarguable that defendant might be found to be at a special disadvantage given director was the controlling mind – authorities leave open the possibility that a company can rely on unconscionability by reason of its special disadvantage – not unarguable that loan was unconscionable given evidence there might have been difficulty servicing the loan – bona fide defence exists – default judgment set aside Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB Civil Procedure Act 2005 (NSW) ss 56, 57, 58 Supreme Court (Corporations) Rules 1999 (NSW) r 2.2 Uniform Civil Procedure Rules 2005 (NSW) rr 16.3, 16.4, 16.6, 36.8, 36.15, 36.16, 39.3, 39.35, 39.45 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3; (2016) 90 ALJR 370 Blomley v Ryan (1956) 99 CLR 325; [1956] HCA 81 Brinks Mat Ltd v Elcombe [1988] 3 All ER 188 Cohen v McWilliam (1995) 38 NSWLR 476 Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) 6 BPR 13,337 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37 Driat Pty Ltd v Thomas [2012] NSWSC 683 Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (2017) 94 NSWLR 606; [2017] NSWCA 53 Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 Guardian Mortgages v Miller [2004] NSWSC 1236 Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2023] NSWSC 411 Kaji Australia Pty Ltd v Glover (No. 4) [2019] NSWSC 1779 Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 Murakami v Murakami; Murakami Re the Estate of Murakami; Murakami v Wiryadi [2005] NSWSC 953 Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41 Principal Financial Group Pty Limited ACN 068 318 507 v Gabriel Joseph Vella [2011] NSWSC 327 Re Imperial Continental Water Corp (1886) 33 Ch D 314 Stubbings v Jams 2 Pty Limited [2022] HCA 6; (2022) 96 ALJR 271 Takemura v National Australia Bank Ltd [2003] NSWSC 339 Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; [1995] HCA 14 Wily v King [2010] NSWSC 352 Texts Cited: Nil Category: Procedural rulings Parties: First Mortgage Managed Investments Limited (Plaintiff) Dial-A-Blind (Australia) Pty Ltd (Defendant) Representation: Counsel: A W Smith (Plaintiff) I King (Defendant)