Bendigo and Adelaide Bank Limited v Borg [2016] NSWDC 192

District Court New South Wales

Medium Neutral Citation: Bendigo and Adelaide Bank Limited v Borg [2016] NSWDC 192 Hearing dates: 22 July 2016, 12 August 2016 Date of orders: 18 August 2016 Decision date: 18 August 2016 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) The judgment entered on 21 March 2016 against the first and second defendants in respect of proceedings 2015/00294816 is set aside. (2) The defendants are granted leave to file a Defence in the form exhibited to Mrs Borg's affidavit sworn 4 July 2016 within 14 days. (3) The plaintiff is granted leave to file an Amended Statement of Claim within 28 days; (4) The defendants are to file a Defence to any Amended Statement of Claim filed and served by the plaintiff within 28 days of service of that Amended Statement of Claim; and (5) The costs as agreed or assessed of the defendants' Notice of Motion filed 4 July 2016, are to be the defendants' costs in the cause. Catchwords: Practice and Procedure – setting aside default judgment – irregularity – failure to plead material facts – exercise of discretion Legislation Cited: Supreme Court Act 1986 (Vic) Taxation Administration Act 1996 (NSW) Uniform Civil Procedure Rules 2005, Parts 36.15(1) and 36.16(1) Cases Cited: Arnold v Forsythe [2012] NSWCA 18 Clarke v Great Southern Finance Pty Ltd [2014] VSC 516 Commonwealth Bank of Australia v Harrison [2014] NSWSC 1436 Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20 Sargeant v HE & FG Campbell Agricultural Machinery Repairs [2016] NSWSC 544 Zakaria v Dr Noyce [2012] NSWSC 981 Category: Procedural and other rulings Parties: Bendigo and Adelaide Bank Limited (Plaintiff) Anthony Borg (First Defendant) Jacqueline Borg (Second Defendant) Representation: Counsel: S Pearlman (Plaintiff) P Horobin (First and Second Defendants)