Magnate Projects Pty. Ltd. v. Youma Constructions (No.2) Pty. Ltd. [2005] NSWCA 331

New South Wales Court of Appeal

CITATION: Magnate Projects Pty. Ltd. v. Youma Constructions (No.2) Pty. Ltd. [2005] NSWCA 331

HEARING DATE(S): 9 September 2005

JUDGMENT DATE: 26 September 2005

JUDGMENT OF: Handley JA at 1; Hodgson JA at 20; Campbell AJA at 77

DECISION: 1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed, and order of 24 June 2005 setting aside Master Macready's judgment set aside. 3. In lieu thereof:(a) Provided Youma and/or Mr. Marsh pay Magnate $20,000.00 on account of costs within 28 days as required by par.(c), Master Macready's judgment set aside. (b) It is a condition of this order that Youma not apply for security for costs against Magnate beyond an order that may be satisfied by Mr. Luu becoming personally liable for Magnate's costs incurred after this date. (c) Youma (as well as Mr. Marsh) to pay Magnate's costs (i) thrown away by reason of the judgment made on 23 March 2005 being set aside, and (ii) the costs of the Notice of Motion filed on 7 June 2005, on an indemnity basis, such costs to be borne by Mr. Marsh as between himself and Youma, $20,000.00 to be paid on account of such costs within 28 days. 4. Youma to pay Magnate's costs of the application and the appeal, and to have a Suitors' Fund Act certificate if otherwise eligible.

CATCHWORDS: PROCEDURE - Judgment obtained after hearing in absence of defendant - Absence of defendant due to gross default of solicitor - Judgment set aside - Onus on defendant to show defence on the merits - Whether affidavit verifying defence is evidence in support of such defence - Relevance of prejudice to plaintiff and principal of plaintiff - Appropriate conditions on setting aside such a judgment.

LEGISLATION CITED: Property Stock & Business Agent Act 2002, ss.3, 9.