Symond v McNeice [2011] NSWDC 87

District Court New South Wales

Medium Neutral Citation: Symond v McNeice [2011] NSWDC 87 Hearing dates: 10 August 2011 Decision date: 11 August 2011 Before: MURRELL SC DCJ Decision: Application dismissed Catchwords: Default judgment Motion to set aside Loan agreement Explanation for delay Arguable defence Legislation Cited: Uniform Civil Procedure Rules 2005 Frustrated Contracts Act 1978 Cases Cited: Akari v Sole [2008] NSWSC 59 Martech International Pty Ltd v Energy World Corporation Ltd [2006] FCA 1004 Agricultural & Rural Finance Pty Ltd v Gardener [2008] HCA 57 Electronic Industries Ltd David Jones Ltd (1954) 91 CLR 288 Davis Contractors Ltd v Fareham UDC [1956] AC 696 Lindsay-Owen v Associated Dairies Pty Ltd [2000] NSWSC 1095 Scanlan's New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 Category: Principal judgment Parties: JJ Symond Robert McNeice (applicant) Representation: S. Docker D. Baran Kemp Strang Schreuder Partners Lawyers

File Number(s): 2010/00120002

JudgmenT

Background 1The applicant is an entrepreneur who was friendly with the respondent and the respondent's nephew. In 2003, he obtained a personal loan of $100,000 from the respondent's nephew. In early May 2004, he obtained a personal loan from the respondent. It was agreed that the principal sum of $170,000 and interest of $20,400 would be repaid on or before 1 November 2004. The moneys were not paid. In late November 2004, the applicant met with the respondent at the residence of the respondent. The applicant gave a cheque for $170,000 to the respondent and asked him to defer banking the cheque until the applicant had the capacity to meet the cheque. The respondent became angry and asked the applicant to leave. The following morning, the applicant spoke to the respondent's nephew, who offered to approach the respondent and repeat the offer that had been rejected on the previous evening. The applicant heard nothing further from the respondent or his nephew. The respondent presented the cheque. It was dishonoured. 2Thereafter, the applicant was engaged on overseas business. As a result of complaints made by the respondent and his nephew to NSW police, in August 2008 the applicant was arrested in Indonesia. He was detained in appalling circumstances. In April 2010, he was extradited to Australia. In May 2010, he pleaded guilty to two counts of obtaining money by deception. He was sentenced to imprisonment and incarcerated from August 2008 to September 2010, when he was released on parole.