Secure Funding Pty Ltd v Stark Secure Funding Pty Ltd v Conway [2013] NSWSC 1729

Supreme Court New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v Stark Secure Funding Pty Ltd v Conway [2013] NSWSC 1729 Hearing dates: 09/10/2013 Decision date: 28 November 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: In proceedings 2013/62391 Secure Funding Pty Ltd v Rex Anthony Conway: (1) The default judgment entered on 2 July 2013 is set aside. (2) The defendant is to file and serve a defence within 14 days. In proceedings 2012/266739 Secure Funding Pty Ltd v John Charles Stark and Jennifer Gloria Stark: (3) The default judgment entered on 20 February 2013 is set aside. (4) The first and second defendants are to file and serve a defence within 14 days. (5) Proceedings 2012/266739 Secure Funding Pty Ltd v John Charles Stark and Jennifer Gloria Stark are to be heard together with proceedings 2013/62391 Secure Funding Pty Ltd v Rex Anthony Conway. (6) Paragraphs [4] and [5] of both motions filed on 9 October 2013 are stood over to the directions list of the Commercial Division at 9.45 am on Friday, 6 December 2013. (7) Costs of the amended notices of motion filed 9 October 2013 are reserved. Catchwords: PROCEDURE - application to set aside default judgment - defence previously not raised - whether application is an abuse of process - whether there is an arguable defence under the Australian Securities and Investments Commission Act 2001 (Cth) and Competition and Consumer Act 2010 (Cth) Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 Competition and Consumer Act 2010 (Cth) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: ACCC v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Securities and Investments Commission v Bank of Queensland [2011] FCA 1361 Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 Bullabidgee v McCleary [2011] NSWCA 259 Canon Australia Pty Ltd v Patton [2007] NSWCA 246 CG Berbatis Holdings Pty Ltd v ACCC [2001] FCA 757; (2001) 185 ALR 555 Cohen v McWilliam (1995) 38 NSWLR 476 CKM (Mortgages) Limited v Burtenshaw [2010] NSWSC 1044 Cuttle v Brandt (1947) 64 WN (NSW) 96 Evans v Bartlam [1937] 2 All ER 646 Hurley v McDonalds Australia Ltd [1999] FCA 1728, (2000) ATPR 41-741 Levy and Bablis [2012] NSWCA 128 Monroe Topple & Assocs Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; (2002) 122 FCR 110 Perpetual Ltd v Dilati [2011] 891 NSWSC Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 Category: Procedural and other rulings Parties: 2012/266739: Secure Funding Pty Ltd (Plaintiff) John Charles Stark (First Defendant Jennifer Gloria Stark (Second Defendant)