Acimall AustraliaCong Bui Buu t/a Austcraft Furnitures [2004] NSWLC 4

Local Court of New South Wales

CITATION: Acimall AustraliaCong Bui Buu t/a Austcraft Furnitures [2004] NSWLC 4 JURISDICTION: Civil PARTIES: Acimall Australia (Judgment Creditor/Respondent) Cong Bui Buu t/a Austcraft Furnitures (Judgment debtor/applicant) FILE NUMBER: 6075/99 PLACE OF HEARING: Donwing Centre DATE OF DECISION: 06/10/2004 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Practice - Setting aside default judgment - irregulairty - whether liquidated or unliquidated claim - whether delay adequately explained - presumptive prejudice to plaintiff - limitation period LEGISLATION CITED: Local Court (Civil Claims) Rules 1988 pt 11 r2 pt 26 r 3 Brisbane South Regional Health Service v Taylor (1996) 186 CLR 541 CASES CITED: RT Company Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168 Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd [2000] SASC 210 Spain v Union Steamship Co of NZ (1923) 32 CLR 138 REPRESENTATION: Mr Richardson for the plaintiff/Judgment Creditor Mr Canceri for Defendant/Judgment Debtor ORDERS: 1. Motion dismissed.; 2. Applicant to pay respondent's costs of disposal of motion in sum agreed or assessed.

Reasons for Decision 1. This is the fifth motion brought by the judgment debtor to set aside default judgment in this matter. I do not know whether that is a record but I am confident that it may be close. The proceedings now before this Court have had, to say the least, a tortuous progress thus far. Background to the current motion

2. The judgment creditor, Acimall Australia Pty Ltd ("Acimall") filed a Statement of Liquidated Claim at the Downing Centre Local Court on 2 June 1999, claiming the sum of $33,594.00 in respect of a contract said to have been entered by the parties pursuant to which the judgment debtor agreed to buy a Morbidelli Model Author 504STC Machining Centre for an amount of $167,500.00. The judgment creditor alleged that the judgment debtor had repudiated the contract, which had been accepted by the judgment creditor, and that as a result the judgment creditor had lost $33,594 in profits.