Australia, May 25 -- New South Wales Land and Environment Court issued text of the following judgement on April 24:

1. On 16 August 2023 the plaintiff, Nexus Access Pty Ltd (Nexus), obtained default judgment against the defendant, CH Pacific Resources Pty Ltd (CPR), on its Amended Statement of Claim (ASoC) in the sum of $100,234.59. By notice of motion filed 21 February 2025, CPR seeks to set aside that judgment and to set aside a number of consequential orders. The orders sought to be set aside include a garnishee order and CPR seeks the return of $74,488.25 garnisheed from its bank account on 31 August 2023.

2. CPR says the default judgment ought be set aside under r 36.15 of the Uniform Civil Procedure Rules 2005 (UCPR) on the basis that it was irregularly obtained or was obtained against good faith. Alternatively, CPR says that default judgment ought be set aside under r 36.16 UCPR on the basis that it was a judgment obtained in CPR's absence and, as a matter of discretion, CPR ought be permitted to defend the claim.

3. Nexus says that neither ground is made out and, in any event, it would be prejudiced by default judgment being set aside some two and a half years after the order was made and the garnishee order was executed, such that the balance of discretionary factors do not favour the making of the order.

4. CPR relies on the affidavit of its solicitor, Damin Murdock, affirmed 21 February 2025, and of its directors, Tianjin Hu, affirmed 20 February 2025, and Leo Wu, affirmed 21 February 2025. A large volume of material, comprising what appears to be the entire procedural history and evidence of related proceedings between the parties (the 2024 proceedings) was also tendered, but only provisionally admitted, subject to relevance. I have now determined to admit that material. Nexus read the affidavit of service of Errol Gracias, affirmed 14 June 2023.

5. For the reasons set out below, I have decided, in the exercise of my discretion, to set aside the default judgment. This is an indulgence to CPR, and accordingly, notwithstanding that it has succeeded on the motion, costs ought be in the cause.

Relevant principles

6. The general rule in litigation is that orders of the Court are final, subject to appeal. There is a public interest in the finality of litigation and the discretion to set aside a regularly obtained order is exercised sparingly.

7. The defendant relies on the powers under rr 36.15(1) and 36.16(2)(a) and (b) of the UCPR. Although both powers require the exercise of discretion, different considerations apply in the exercise of the powers under each rule.

8. Rule 36.15(1) provides:

36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

9. Relevantly, an irregularity may be demonstrated by the inapt use of the procedure under r 16.6 to obtain default judgment on a liquidated claim when the claim is, in truth, an unliquidated claim, to which the procedure under r 16.7 properly applies. In the latter case, an assessment hearing, at which the defendant may (or may not) appear, is required.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19665432f7397277d1dd27f5)

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