J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283 Hearing dates: 23 October 2019 Decision date: 27 November 2019 Before: Gleeson JA at [1] Brereton JA at [102] Simpson AJA at [103] Decision: (1) Grant leave to appeal. (2) Direct the appellant to file a notice of appeal in the form of the draft in the White Book within 7 days. (3) Appeal allowed. (4) Set aside the orders made by Strathdee DCJ on 19 July 2019 and in place, order: (a) That the default judgment entered on 8 April 2018 be varied by substituting the figure "$90,966.75" in place of the figure "$215,805.54", such that judgment is entered against the defendant in the sum of $90,966.75. This judgment is to take effect from 8 April 2019. (b) The defendant/applicant to pay the plaintiff/respondent's costs of and incidental to the motion and also the costs thrown away by reason of the default judgment being varied. (5) The defendant to file and serve its defence (excluding par 13) and cross-claim within 7 days. (6) Stay the enforcement of the judgment and costs orders referred to in order (4) until the determination of the proceedings in the District Court. (7) The appellant to pay the respondent's costs in this Court. Catchwords: CIVIL PROCEDURE – default judgment – leave to appeal from interlocutory decision refusing to set aside – where dispute concerned unpaid commissions in real estate agency agreement – where defendant failed to file defence – where inadequate explanation for delay – consideration of length of delay and any special prejudice to plaintiff – where primary judge found bona fide defence on the merits – dictates of just, quick and cheap resolution of proceedings – where plaintiff conceded portion of judgment debt not properly supported on grounds argued below – whether unjust to permit plaintiff to retain entirety of default judgment – appropriate costs orders where defendant sought an indulgence and plaintiff had reasonably opposed – default judgment varied Legislation Cited: Civil Procedure Act 2005 (NSW), ss 57, 58, 59, 60, 70(1)(c) District Court Act 1973 (NSW), s 127(2)(a) Property, Stock and Business Agents Act 2002 (NSW), ss 36, 55 Supreme Court Act 1970 (NSW), s 82 (repealed) Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16(2) Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Dai v Zhu [2013] NSWCA 412 House v The King (1936) 55 CLR 499; [1936] HCA 40 Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Permanent Custodians Ltd v El Ali (No 2) [2008] NSWSC 1391 Reinher Industrial Lease & Finance Pty Ltd v Jordan (Court of Appeal (NSW), 4 June 1974, unrep) Texts Cited: G E Dal Pont, Law of Costs, 3rd ed, 2013, LexisNexis Butterworths Category: Principal judgment Parties: J & M McNamee Holdings Pty Ltd (Applicant) Mungerie Vale Pty Ltd trading as Greenwood Group Realtors (Respondent) Representation: Counsel: Mr J S Emmett / Mr C L W Street (Applicant) Mr G McNally SC (Respondent)