Westpac Banking Corporation & Anor v Simon Wakim [2011] NSWSC 414

Supreme Court New South Wales

Medium Neutral Citation: Westpac Banking Corporation & Anor v Simon Wakim [2011] NSWSC 414 Hearing dates: 6 May 2011 Decision date: 10 May 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: Notice of motion dismissed. Defendant to pay the plaintiff's costs of the application. Catchwords: Notice of motion seeking to set aside default judgment - Principles - No arguable defence - Prejudice to plaintiff Cases Cited: Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300 New South Wales Bar Association v Smith (unreported, NSWCA 4 July 1991) Pittalis v Sherefettin [1986] QB 868 Smith v New South Wales By Association (1992) 176 CLR 256 Category: Procedural and other rulings Parties: Westpac Banking Corporation (First Plaintiff) St George Financing Limited (Second Plaintiff) Simon Wakim (Defendant) Representation: Mr Robertson (First and Second Plaintiffs) Ms Nolan (Defendant) Henry Davis York (First and Second Plaintiffs) Deutsch Partners (Defendant) File Number(s): 2009/00298737

Judgment

The notice of motion 1The defendant moves on a notice of motion seeking to set aside a default judgment entered in these proceedings on 23 July 2010. 2The original proceedings were brought by St George Bank Limited and St George Finance Limited against Mr Simon Wakim. 3The relief claimed by the plaintiffs against the defendant is for the sum of $3,069,753.75 together with interest. 4The commercial list statement filed by the plaintiffs identified the issues in terms of whether the defendant is to pay the above described moneys, interests and costs pursuant to guarantees and the general terms and conditions and the cheque terms and conditions. In essence the plaintiffs' contentions are founded upon the plaintiffs' advances to a company associated with Mr Wakim. 5The plaintiffs claimed that by guarantees and indemnities dated 20 September 2007 and 31 January 2008 given by the defendant to the plaintiffs in consideration of the plaintiffs granting or affording or continuing to grant and forward advances or accommodation to the company, the defendant guaranteed to the plaintiffs on the terms and conditions set out in those documents, the payment, when demanded in writing, of all money owing or payable by the company, including under the cheque plus count, and various other facilities. 6The plaintiffs claimed that in breach of obligations under the facilities the company defaulted and that the defendant has failed to pay the amount owing to the plaintiff under the guarantees.