Epiroc Financial Solutions Australia Pty Limited v Kenworthy [2020] NSWSC 316

Supreme Court New South Wales

Medium Neutral Citation: Epiroc Financial Solutions Australia Pty Limited v Kenworthy [2020] NSWSC 316 Hearing dates: 25 March 2020 Date of orders: 31 March 2020 Decision date: 31 March 2020 Jurisdiction: Common Law Before: Johnson J Decision: 1. Pursuant to Rule 49.20(2) Uniform Civil Procedure Rules 2005, time for the Defendant to file a Notice of Motion is extended to 5 February 2020. 2. Pursuant to Rule 49.19 Uniform Civil Procedure Rules 2005, the Default Judgment ordered on 17 December 2019 is confirmed. 3. The Defendant's Notice of Motion filed 5 February 2020 is dismissed. 4. The Defendant is to pay the Plaintiff's costs of the Notice of Motion. 5. If the Plaintiff wishes to apply for a special costs order, written submissions in support of that application should be furnished by email to Johnson J's Associate and served by email upon the Defendant on or before 9 April 2020 with the Defendant to furnish submissions in reply by email to Johnson J's Associate and the Plaintiff on or before 23 April 2020. 6. The Court will thereafter determine any application for a special costs order on the papers. Catchwords: CIVIL PROCEDURE – default judgment – review of Registrar's decision declining to set aside default judgment – default judgment against guarantor under chattel mortgage agreement for underground mining equipment – mining equipment repossessed after default under chattel mortgage agreement – whether defendant has arguable or triable defence to claim – defendant seeks to challenge assessment of fair market value of mining equipment – no triable or arguable defence disclosed – default judgment confirmed – application dismissed Legislation Cited: Competition and Consumer Act 2010 (Cth) Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: J&M McNamee Holdings Pty Limited v Mungerie Vale Pty Limited trading as Greenwood Group Realtors [2019] NSWCA 283 Lachlan v HP Mercantile Pty Limited (2015) 89 NSWLR 198; [2015] NSWCA 130 MMAL Rentals Pty Limited v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451 Noble Earth Technologies Pty Limited v Hampic Pty Limited trading as Cyndan Chemicals [2012] NSWSC 935 Webster Investments Pty Limited v Northstar Developments Pty Limited [2016] VSC 620 Texts Cited: --- Category: Principal judgment Parties: Epiroc Financial Solutions Australia Pty Limited (Plaintiff) David Kenworthy (Defendant) Representation: Counsel: Ms T Power (Plaintiff) No Appearance for the Defendant