Gittany v Gittany [2014] NSWSC 761

Supreme Court New South Wales

Medium Neutral Citation: Gittany v Gittany [2014] NSWSC 761 Hearing dates: 7 May 2014 Decision date: 10 June 2014 Before: McCallum J Decision: Application to set aside default judgment refused Catchwords: JUDGMENTS AND ORDERS - application to have default judgment set aside - defendant swearing to facts which, if established at the trial, would afford a defence - whether defence raised in good faith - whether cross-examination of defendant permitted to contend that defence not raised in good faith Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Adams v Kennick Trading (Int'l) Ltd (1986) 4 NSWLR 503 Australian Executor Trustees Ltd v Lanmar [2008] NSWSC 549 Cohen v McWilliam (1995) 38 NSWLR 476 Davies v Paget (1986) 10 FCA 226 House v The King (1936) 55 CLR 499 Simpson v Alexander (1926) 26 SR (NSW) 296 Richards v High (1920) 37 WN (NSW) 262 Category: Interlocutory applications Parties: Joe Gittany (plaintiff) Charles Gittany (defendant) Representation: Counsel: G Penhall (solicitor for the plaintiff) D Ash (defendant) Solicitors: Penhall & Co Solicitors (plaintiff) Joe Weller & Associates (defendant) File Number(s): 2012/341101 Publication restriction: None

Judgment 1HER HONOUR: Joe Gittany and Charles Gittany are brothers. Both are builders. In November 2002, Joe Gittany mortgaged three properties owned by him in order to borrow over $1 million for him to on-lend to a building development project to be undertaken by Charles Gittany. On 1 November 2012, Joe Gittany commenced proceedings to recover amounts allegedly remaining unpaid under that agreement. Charles Gittany failed to file a defence to the claim and, on 25 February 2013, Joe Gittany obtained judgment by default in the sum of $1,057,350.82. 2On 17 May 2013, after being served with a bankruptcy notice based on the default judgment, Charles Gittany filed a notice of motion seeking to have the default judgment set aside (for reasons not explained in the material before me, the motion was not listed for hearing until almost a year later, on 7 May 2014). This judgment determines that application.