Australian Executor Trustees Limited v Lanmar Pty Ltd & Ors [2008] NSWSC 549

New South Wales Supreme Court

CITATION : Australian Executor Trustees Limited v Lanmar Pty Ltd & Ors [2008] NSWSC 549 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 3 March 2008

JUDGMENT DATE : 4 June 2008

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

1. The default judgment is set aside. 2. Leave is granted to Mr Assi to file a defence and cross-claim. DECISION : 3. The defence and cross-claim, duly verified, must be filed and served within 28 days of the date hereof. 4. Mr Assi is to pay the plaintiff's costs of and incidental to the application to set aside the default judgment. 5. The plaintiff's application for summary judgment is dismissed. 6. The plaintiff is to pay Mr Assi's costs of and incidental to the application for summary judgment.

CATCHWORDS : Default judgment - application to set aside - defendant's evidence of arguable defence - whether appropriate to cross-examine - proper procedure.

LEGISLATION CITED : Contracts Review Act 1980 ss 7, 9 Uniform Civil Procedure Rules 2005 Pt 13.1

CATEGORY : Principal judgment

Cohen v McWilliam & Anor (1995) 38 NSWLR 476 Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Elko Fairi v Permanent Trustee Co Limited (2002) 11 BPR 20,841 CASES CITED : Esanda Finance Corp Limited v Tong (1997) 41 NSWLR 482 Garcia v National Bank Limited (1998) 194 CLR 395 St George Commercial Credit Corporation Limited v Collins Wallace Properties Pty Limited (unreported, NSWSC, 17 & 18 August 1998, 21 August 1998) St George Bank Limited v Domenica Trimarchi & Anor [2004] NSWCA 120 West v AGC (Advances) Limited (1986) 5 NSWLR 610