Violi v Commonwealth Bank of Australia [2015] NSWCA 152

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Violi v Commonwealth Bank of Australia [2015] NSWCA 152 Hearing dates: 6 March 2015 Date of orders: 02 June 2015 Decision date: 02 June 2015 Before: Emmett JA at [1]; Bergin CJ in Eq at [91]; Sackville AJA at [121] Decision: (1)Grant leave to appeal.

(2)Allow the appeal.

(3)Set aside the orders made by Balla DCJ on 20 December 2013 dismissing Mr Violi's notice of motion.

(4)Set aside the default judgment against Mr Violi entered on 9 January 2013.

(5)The Bank is to pay Mr Violi's costs of the application for leave and of the appeal. Catchwords: PROCEDURE – application to set aside default judgment – whether the applicant has an adequate explanation for delay – whether the applicant has an arguable defence under the Contracts Review Act 1980 (NSW)

PROCEDURE – service of originating process – substituted service – whether orders for substituted service were complied with – whether the application for default judgment satisfied the requirements of the Uniform Civil Procedure Rules 2005 (NSW) – whether, as a consequence, the default judgment was entered regularly Legislation Cited: Contracts Review Act 1980 (NSW), ss 7, 9 District Court Act 1973 (NSW), s 18FB District Court Rules 1973 (NSW), Pt 43A r 1 Uniform Civil Procedure Rules 2005 (NSW), rr 10.1, 10.14, 10.20, 10.21, 14.3, 16.2, 16.3, 16.6, 35.8, 36.15, 36.16 Cases Cited: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 Arnold v Forsythe [2012] NSWCA 18 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Simpson v Alexander (1926) 26 SR (NSW) 296 University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447 Category: Principal judgment Parties: Francesco Violi (Applicant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: Mr D Pritchard SC with Mr M Newton (Applicant) Mr P Brereton SC with Mr D Sulan (Respondent)