Law Case: Application to Set Aside Default Judgement for Andrew Allen

This case study presents an application to set aside a default judgement made against Andrew Allen concerning a claim by Brown Bricks Pty Limited. Allen seeks to overturn the judgement, arguing he never received the ordered bricks and that the default judgement was communicated to him after it was entered, violating natural justice principles. The application cites Sub-rule 2(a) of Rule 36.16 of the Uniform Civil Procedure Rules of 2005, supporting Allen's right to appeal the judgement. A Form 20 Notice of Motion and an affidavit have been filed to support the defense, asserting Allen's lack of liability for the plaintiff's claims. The submission requests the court to set aside the default judgement, emphasizing the unfair treatment Allen has experienced throughout the legal process and appealing to the court's discretion for a fair resolution.

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Submissions of the Case

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Chronology
Date Event
5 and half months ago Andrew Allen sent an email to the Sales
clerk of Brown Bricks Pty Ltd to place an
order of 70000 bricks.
4 and half months ago Invoice confirming order sent to Andrew
Allen.
3 and half months ago Letter to Andrew Allen by John Burton
regarding payment within 7 days.
3 and half months ago Letter to John Burton by Andrew Allen
regarding non receipt of bricks.
3 months ago Letter to Andrew Allen regarding legal
proceedings for non payment.
2 and half months ago Statement of Claim received by Andrew
Allen. Next day he went to the Manly Local
Court where he was informed by the clerk
that the matter is pertinent to District Court.
1 and half months ago Andrew Allen got to know from the clerk at
the District Court that a default judgement
has entered against him.
1 and quarter months ago Andrew Allen launched a complaint at the
New South Wales Fair Trading.
1 month ago Letter to Andrew Allen from the New South
Wales Fair Trading stating that the matter
has nothing to do with them.
3 weeks ago Bill Cummins, friend of Andrew Allen
informed him that the bricks suddenly
turned up at the where he was working. But
the details of the bricks could not be
understood.
Application
The application of the case is to be filed in order to set aside the default judgement made
against my client Andrew Allen.
Orders sought for
The default judgement made against my client Andrew Allen must be set aside at the earliest
as per Sub-rule 2a of Rule 36.16 of the Uniform Civil Procedural Rules of 2005 (New South
Wales) by making an application through Form 20 Notice of Motion which has been served
upon the plaintiff along with an affidavit. The provision implies that the default judgement
has been made in the absence before the court.

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Elements to satisfy the court
The court is under the discretionary power vested by Sub-rule 2a of Rule 36.16 of the
Uniform Civil Procedural Rules of 2005 (New South Wales) in order to exercise its power
with reference to the setting aside of the default judgement entered against Andrew Allen.
The main factors which may be exercised by the court at its discretion are as follows:
Mitigating circumstances- Due to mitigating circumstances such as medical expenses as a
result of wife’s ill health and inability to afford a solicitor in order to defend himself against
the plaintiff Brown Bricks Pty Limited, my client Andrew Allen was not able to prepare and
file his defence accordingly. As a result, stay proceedings must be initiated by the court in
order to curtail the execution of the default judgement until the default judgement is set aside.
It is imperative that there is a reason why the defence was not filed by the defendant within
the stipulated timeframe.
Defence on merits- The defendant seeks for a remedial solution in consideration of the merits
of the case. My client Andrew Allen was informed about the default judgement made against
him only when he enquired with the clerk Mr. Simon Bell at the District Court. Such
information was provided a day after the default judgement was made.
Delay in making application- It is of the sole discretion of the court to determine whether any
delays have been made with regard to the filing of the case pertaining to the making of the
application to set aside the default judgement entered against my client Mr. Andrew Allen. It
has to be seen whether the affidavit in support is valid under Sub-rule 4 of Rule 16 of the
Uniform Civil Procedural Rules of 2005 (New South Wales) thereby taking into
consideration of the limitation period of fourteen days. The affidavit in support in this regard
is within the meaning enshrined in Rule 2a of the Uniform Civil Procedural Rules of 2005
(New South Wales).
The court may make orders with respect to the legal costs and outlays of the plaintiff to be
paid by the defendant. Additionally, orders can also be made pertaining to the filing of the
defence by the defendant within the prescribed timeframe.
Outline of the submissions
The facts of the case imply that a default judgment has been made against Andrew Allen with
regard to claim made by Brown Bricks Pty Limited for bricks which have actually not been
received by Andrew Allen.
The default judgment implies the claim of the plaintiff amounting to 157,517.29 dollars in
total.
The New South Wales Fair Trading has also not taken his complaint seriously.

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The information to Andrew Allen was communicated after one day the default judgment was
entered against him.
Andrew Allen got to know about it only when he enquired at the counter with clerk Mr.
Simon Bell which is a breach of natural justice taking account of the points of law in the case.
Sub-rule 2(a) of Rule 36.16 of the Uniform Civil Procedure Rules of 2005 entitles my client
Andrew Bell to make an application to set aside the default judgment of the court.
A Form 20 Notice of Motion has been filed in order to capitulate upon the defence of my
client by the virtue of the application in order to set aside the default judgment. Additionally,
an affidavit has also been filed from which it is imperative that the defendant is not liable for
the claims made by the plaintiff.
It is humbly prayed before the court that my client Andrew Allen has been treated in an
unfair manner with regard to the course of the matter as far as the default judgment made
against him is concerned. As a result, the default judgement made by the District Court
against my client is to be set aside at the earliest.
The honourable court is at discretion to pass any order of or judgement which it deems to be
fit and appropriate in the interest of equity and fairness.