Sediey & Imperi v Hraiki [2008] NSWDC 395

New South Wales District Court

CITATION: Sediey & Imperi v Hraiki [2008] NSWDC 395

JUDGMENT DATE: 17 October 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The default judgment is set aside.

CATCHWORDS: CIVIL - application to set aside default judgment - no defence filed - whether there is an acceptable explanation for the failure to file a defence - whether there is a bona fide defence to the claim - evidence that defendants had not received statement of claim - assertion of forgery of signatures by defendants' son

Edgar Sediey PARTIES: Mabel Imperi Wagih Hraiki Amal Hraiki

FILE NUMBER(S): 1336/2008

COUNSEL: Mr O'Connor for the plaintiffs Mr FFF Salama for the defendants

JUDGMENT

1. The plaintiffs in this case have sued the defendants for a debt. The debt claimed is $330,000. The plaintiffs say that they lent that amount to the defendants on 8 February 2007. The plaintiffs filed a statement of claim on 8 April 2008. However, the defendants did not file any defence to the statement of claim. The plaintiffs obtained default judgment on their claim against the defendants. The defendants are now asking me to set aside that default judgment.

2. I have power to do that and the two most important factors are those referred to by Mr O'Connor who appears for the plaintiffs. They are whether there is an acceptable explanation for the failure to file a defence and whether there is a bona fide defence to the claim. I am satisfied of both for the following reasons.

3. As for the explanation for no defence, Mr O'Connor pointed to evidence in the case that the statement of claim had been served upon both defendants. That evidence was in the form of two affidavits of service which indeed assert that the process server delivered the statement of claim to each defendant on 11 April 2008. In addition, there is evidence that a year before, some solicitors had written to the defendants a letter of demand for the loan. That was a letter dated 28 May 2007 and one was addressed to each defendant. Mr O'Connor points to evidence that both defendants received those letters. The evidence he points to is in the form of advice receipts bearing signatures which purport to be that of each defendant. Mr O'Connor then argues that given the evidence of receipt of the letter of demand at the end of May 2007 and of the statement of claim in April 2008, there is no explanation for the failure to file any defence to the claim within the time. If that evidence of receipt of the documents is accepted then Mr O'Connor is right.