Bendigo and Adelaide Bank Ltd v Dimitrov [2018] NSWDC 152

District Court New South Wales

Medium Neutral Citation: Bendigo and Adelaide Bank Ltd v Dimitrov [2018] NSWDC 152 Hearing dates: 7 June 2018 Date of orders: 15 June 2018 Decision date: 15 June 2018 Jurisdiction: Civil Before: Russell SC DCJ Decision: 1. Set aside the default judgment entered in favour of the plaintiff against the defendant on 23 May 2016. 2. Grant leave to the defendant to file and serve a Defence and Cross-Claim (if any) within 28 days. 3. Order the plaintiff to pay the defendant's costs of this Motion. Catchwords: JUDGMENTS AND ORDERS – setting aside default judgment – whether judgment made against good faith – default judgment obtained by plaintiff in circumstances where Financial Ombudsman Service had notified plaintiff that it would re-open defendant's Notice of Dispute – considerations relevant to setting aside judgment under Rule 36.15 Uniform Civil Procedure Rules 2005

JUDGMENTS AND ORDERS – considerations relevant to setting aside default judgment under Rule 36.16 Uniform Civil Procedure Rules 2005 – defence on merits – adequate explanation for default and delay – whether defendant estopped from raising defences and cross-claims – release – effect of and principles of construction. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ABL Custodian Services Pty Limited v Kunz [2016] SADC 145 Bendigo and Adelaide Bank Limited v Gaedtke [2017] QDC 28 July 2017 Bendigo and Adelaide Bank Limited v Zipevski [2018] NSWDC 54 Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51 Clarke v Great Southern Finance Pty Ltd [2014] VSC 516 Coles v Burke (1987) 10 NSWLR 429 Dillon v RBS Group (Australia) Pty Limited (No. 2) [2018] FCA 395 Dimitrov v The Supreme Court of Victoria [2017] HCA 51 Karam v ANZ Banking Group Limited & 1 Ors [2001] NSWSC 709 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Pekell Delaire Holdings Pty Limited v Bendigo and Adelaide Bank Limited [2016] VSC 570 Roach v B & W Steel Pty Limited (1991) 23 NSWLR 110 Timbercorp Finance Pty Limited (In Liquidation) v Collins [2016] HCA 44; (2016) 259 CLR 212 Category: Procedural and other rulings Parties: Bendigo and Adelaide Bank Limited (plaintiff) Peter Dimitrov (defendant) Representation: Counsel: B Koch (plaintiff) S Ivantsoff (solicitor) (defendant)