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[2026] NSWCA 180
respondent. Leave to appeal was refused with costs, and the stays granted on 27 July 2026 came to an end.
The Court of Appeal did not decide a full appeal about the loan or the underlying possession claims. It decided whether the applicants had shown enough to obtain permission to appeal. It concluded that they had not. The alleged procedural irregularities did not automatically undo the judgments, and the applicants had not put forward evidence showing a reasonably clear defence on the merits. The Court also found that the primary judge had considered the relevant medical evidence and had not been shown to deny procedural fairness. Leave was refused with costs.
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2,243 words · generated 08/10/2026
This was an expedited application for leave to appeal, not a full appeal determining the underlying loan dispute. The applicants were Events by Lush Pty Ltd, the borrower, and its directors Christine and Ian Perry, who had signed as guarantors. The respondent, Capital Securities Mortgages Pty Ltd, was the lender.
8 cited instruments linked from this judgment.
On 1 May 2025, Capital Securities advanced $1,555,000 to Events by Lush under a Loan, Security and Guarantee Deed. The loan was secured by a mortgage over Events by Lush’s Rosemeadow property and a second mortgage over Christine and Ian’s Ambarvale property. The primary judge had found that documents provided before execution included signed declarations by the guarantors that they had received independent legal advice, and that the solicitor who witnessed their signatures was the solicitor who gave that advice ([2]–[3]).
Events by Lush defaulted on repayments. On or about 24 September 2025, Capital Securities terminated the deed and demanded $1,725,622.90. It also made separate demands under Christine’s and Ian’s guarantees. No amounts were repaid ([4]). Capital Securities began possession proceedings on 30 October 2025. Events by Lush did not file a defence, and default judgment for possession of the Rosemeadow property was entered on 12 December 2025 ([5]).
The later procedural history mattered. Events by Lush and Christine were given opportunities to file documents, including draft defences. Christine did not comply with the relevant filing order, and default judgment for possession of her interest in the Ambarvale property was entered on 27 March 2026 ([8]–[11]). In April, the primary judge dismissed motions to set aside the judgments, permitted writs of possession to issue, and struck out Ian’s defence while allowing him to replead on conditions ([21]). Ian did not replead or file the required affidavit, and further possession orders were made against him on 6 May 2026 ([22]).
The applicants’ proposed appeal raised four broad complaints: alleged irregularity in the December default judgment, including a backdated notice of appearance; an alleged breach of good faith connected to registry access problems; alleged procedural unfairness in requiring a draft defence and then assessing it; and alleged failure to take account of medical circumstances under s 56 of the Civil Procedure Act 2005 (NSW) ([24]–[32]). The Court of Appeal refused leave with costs ([61]–[62]).
The Court began with the threshold for leave. It stated that leave is generally granted only where a case raises an issue of principle or public importance, or where a reasonably clear error beyond the merely arguable has resulted in injustice ([40]). It found that this case raised no such issue and that no such error had been shown ([41]).
The central procedural argument concerned UCPR r 36.15. That rule gives the court a general power to set aside a judgment or order if it was entered irregularly, illegally, or against good faith, on sufficient cause being shown ([43]). The Court rejected the applicants’ argument that an irregular judgment must be set aside “as of right”. It explained that proof of irregularity does not itself compel the court to set a judgment aside. The discretion remains, and the requirement of sufficient cause is intended to prevent an unproductive or futile exercise of the power ([44]).
On the notice-of-appearance point, the applicants said that the notice had been backdated to a date before default judgment. The Court said that the notice had in fact been filed after the judgment, and that Capital Securities had received no notice of appearance before judgment was entered. On those facts, the subsequent backdating was of little consequence ([46]). It also rejected reliance on Kyabram Property Investments Pty Ltd v Murray, explaining that Kyabram concerned costs and did not address a backdated notice of appearance ([46]).
The Court was also unpersuaded that registry access problems or naming errors justified setting aside the judgment. It found that the applicants had not shown that clerical naming errors caused difficulty accessing the online registry. In any event, the primary judge later gave the applicants ample opportunity to file a defence ([47]). The Court emphasised the absence of evidence supporting the proposed defences: a reasonably clear case on the merits had not been shown, and any possible defence depended on facts for which no evidence had been presented ([48]–[49]).
The “procedural trap” argument failed for similar reasons. The Court said it was not correct to characterise the primary judge as dismissing the case on its merits without warning. It found that the primary judge had considered the draft defence under a correct understanding of the law, and that requiring a draft defence was not shown to be procedurally unfair ([52]–[54]).
Finally, the applicants relied on medical circumstances, including the premature birth of Clare Perry’s child and Christine’s health issues. The Court observed that the primary judge had referred to that evidence, as well as difficulties using the registry and the absence of funds for filing fees ([57]). It found no error in the primary judge’s treatment of those matters ([58]). The applicants therefore did not show an error in applying the overriding purpose in s 56 or a basis for leave ([56]–[59]).
The judgment does not purport to change the law. It applies established principles about leave to appeal and the discretion to set aside judgments. The Court cited Be Financial and The Age Company for the general leave threshold: an issue of principle or public importance, or a reasonably clear error beyond the merely arguable resulting in injustice ([40]).
As to UCPR r 36.15, the Court applied Manhari Recycling. It restated that the rule applies to all judgments and orders, not only default or consent judgments, but that proof of irregularity does not automatically require a judgment to be set aside. The court must exercise its discretion judicially, with sufficient cause shown; the judgment should not be set aside where doing so would be futile ([43]–[44]). The Court also addressed Magnate Projects, rejecting the applicants’ reading of it as removing any need to show a defence on the merits. The passage relied on by the Court says that the circumstances may require a reasonably clear case of merits, and that if the defence depends on facts there should be some evidence of those facts ([45]).
The decision’s application is fact-sensitive. It does not establish that registry problems can never matter, that medical evidence can never justify procedural relief, or that every applicant must establish the same form of evidence. Rather, the Court concluded that the applicants in this case had not shown that the alleged problems caused the relevant default judgment, particularly given the later opportunities to file defences ([47]–[48]).
The judgment also restates limits on assistance to self-represented litigants. Citing Chalik, it notes that courts should provide sufficient information about practice and procedure to enable a fair trial, while preserving the procedural balance between the parties. That obligation does not extend to advising a litigant how to exercise rights or conducting the litigant’s case ([42]). The Court used this principle in rejecting the contention that the primary judge had to treat the draft defence differently or provide further assistance.
At [40], the Court states the general leave test: “this Court will grant leave to appeal only in cases that involve issues of principle or of public importance, or where it is reasonably clear that an error has been made (that error going beyond the merely arguable) resulting in injustice.” In plain English, an applicant needs to identify more than a debatable point. The claimed error must be sufficiently clear and must have caused injustice, unless the case raises a wider issue of principle or importance.
At [44], the Court explains that proof of irregularity does not automatically undo a judgment. The rule preserves a discretion, and “sufficient cause” requires consideration of whether setting aside the judgment would be useful rather than futile. This means that a procedural flaw and the practical consequences of correcting it are distinct questions.
At [46], the Court says the notice of appearance was filed after default judgment and had not been received by Capital Securities beforehand. The later backdating therefore did not establish that the earlier judgment was irregular. The point is tied to the sequence of events described in this case, rather than a general ruling about every correction to a court record.
At [48], the Court identifies three reasons the r 36.15 ground did not justify leave: the rule had not been relied on before the primary judge; no sufficiently clear irregularity was shown; and no sufficient cause to exercise the discretion was shown. Its final point was that no reasonably clear case on the merits had been supported by evidence.
At [57], the Court records that the primary judge had referred to the applicants’ medical and practical circumstances. At [58], it says no error had been shown in the way those matters were addressed. This is the Court’s response to the specific claim that the medical evidence had been ignored, not a general statement that medical circumstances are immaterial.
The decision is most directly relevant to applications for leave to appeal where the proposed grounds challenge the refusal to set aside a default judgment, and rely on alleged procedural irregularity, registry access problems, or a claim that the court did not adequately assist self-represented litigants. Its reasoning is especially pertinent where the alleged irregularity is said to be cured or rendered immaterial by later procedural opportunities, and where the applicant has not produced evidence supporting a defence on the merits ([46]–[48]).
It also addresses applications relying on UCPR r 36.15. The rule applies broadly, but an applicant must address both whether the judgment was irregular, illegal, or against good faith and whether sufficient cause justifies setting it aside. The Court’s analysis makes clear that a submission identifying a possible irregularity does not, by itself, resolve the discretionary question ([43]–[44]).
For self-represented litigants, the judgment is relevant when an applicant says the judge should have provided more help with the presentation of a case. The cited principles distinguish procedural information from legal advice or advocacy. Here, the Court considered the requirement to file a draft defence conventional and found no obligation to advise the applicants about evidentiary deficiencies or run their case for them ([42], [52]–[54]).
The decision should not be read beyond those issues. It does not decide the substantive merits of Events by Lush’s proposed claims about unconscionability, special disadvantage, or asset-based lending. Those contentions were described as having been raised in draft defences, but the Court’s leave decision focused on the lack of supporting evidence and the applicable procedural thresholds ([15]–[18], [48]).
The supplied judgment contains no information about later judicial treatment of Events by Lush v Capital Securities Mortgages Pty Ltd. It was decided on 3 September 2026, and the text identifies no subsequent decisions applying, distinguishing, or criticising it. Its future treatment therefore cannot be assessed from this source alone.
The judgment itself explains how it treated earlier authorities. It applied Be Financial and The Age Company for the leave-to-appeal threshold ([40]); explained Chalik’s account of the limits of judicial assistance to self-represented litigants ([42]); applied Manhari Recycling on the discretionary nature of UCPR r 36.15 ([44]); explained Magnate Projects on the need for a merits case supported by evidence where the defence depends on facts ([45]); and distinguished Kyabram because it concerned costs rather than a backdated notice of appearance ([46]). Those are relationships between this judgment and earlier authorities, not evidence of how later courts have treated this judgment.
The judgment does not decide whether the alleged registry naming errors actually occurred as a matter of fact. It says the applicants did not show that those errors caused difficulty in accessing the online registry, and that later opportunities to file a defence were available ([47]). The source does not provide a separate technical finding about the registry system.
Nor does the Court decide the substantive merits of the proposed defences. It records that Events by Lush raised arguments concerning the Contracts Review Act 1980 (NSW), statutory and equitable unconscionability, asset-based lending, special disadvantage, urgency, and bargaining power, but says the primary judge found no factual evidence supporting those contentions ([15]–[18]). The Court’s decision was about leave and procedural grounds, not a final trial of those substantive issues.
The decision also does not determine whether different evidence of a medical emergency, a registry failure, or a defence on the merits might produce a different result in another case. Its conclusion rests on the record before the primary judge and the Court of Appeal. In particular, the judgment notes that the applicants had subsequent opportunities to file proposed defences and that the proposed factual defences were not supported by evidence ([47]–[49]).
Finally, the Court’s brief consideration of UCPR r 36.16 reports only that no error was shown in the primary judge’s treatment of that rule ([50]). It does not give a broader account of how r 36.16 would operate in other circumstances. A lawyer assessing another matter would need to examine the actual orders, procedural history, evidence, and applicable rules rather than assume that this decision resolves those questions.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Events by Lush Pty Ltd v Capital Securities Mortgages Pty Ltd [2026] NSWCA 180
Hearing dates: 1 September 2026
Date of orders: 3 September 2026
Decision date: 03 September 2026
Before: Payne JA; Price AJA
Decision: (1) Leave to appeal is refused with costs.
Catchwords: APPEAL — expedited application for leave to appeal orders entering default judgment for possession — orders dismissing notice of motion — no reasonably clear error going beyond the merely arguable shown — no issue of principle or question of public importance identified
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), ss 101(1)(a), 102(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Capital Securities Mortgages Pty Ltd v Events By Lush Pty Ltd [2026] NSWSC 387
Chalik v Chalik [2025] NSWCA 136
Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44
Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87
Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd [2021] NSWCA 252
Sargood Brothers v The Commonwealth (1910) 11 CLR 258
Stead v State Government Insurance Commission (1986) 161 CLR 141
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category: Principal judgment
Parties: Events by Lush Pty Ltd (First Applicant)
Christine Anne Perry (Second Applicant)
Ian Robert Perry (Third Applicant)
Capital Securities Mortgages Pty Ltd (Respondent)
Representation: Counsel:
Clare Perry (by leave for the Applicants)
C Bannan (Respondent)
Solicitors:
QBM Law (Respondent)
File Number(s): 2026/00252345
Publication restriction: Nil.
THE COURT: This is an expedited application for leave to appeal from a decision of Sirtes J: Capital Securities Mortgages Pty Ltd v Events By Lush Pty Ltd [2026] NSWSC 387. The first applicant, Events by Lush Pty Ltd (Events by Lush), and two of the directors of Events by Lush (Ms Christine Anne Perry and Mr Ian Robert Perry) who are the second and third applicants in these proceedings, seek leave to appeal under s 101(1)(a) and s 102(2)(r) of the Supreme Court Act 1970 (NSW). Without intending any disrespect, we will refer to the second and third applicants by their first names to avoid confusion with another director of Events by Lush, Ms Clare Margaret Perry (Christine’s daughter-in-law), who figures prominently in these proceedings.
On 1 May 2025, the respondent, Capital Securities Mortgages Pty Ltd (Capital Securities), advanced $1,555,000 to Events by Lush, and the parties entered into a Loan, Security and Guarantee Deed (the Deed) recording the terms of their arrangements. The second and third applicants signed the Deed as guarantors. Two mortgages were granted to secure the loan. The first mortgage was granted by Events by Lush over a property in Rosemeadow (the Rosemeadow Property). The second mortgage was granted by Ian and Christine over a property they owned in Ambarvale (the Ambarvale property).
Prior to executing the Deed and the mortgages, his Honour found that the documentation provided to the respondent included signed declarations from Ian and Christine that they had obtained independent legal advice from a solicitor before executing the Deed and the mortgage. That solicitor also witnessed the applicants’ signatures.
Events by Lush defaulted on repayments due under the Deed almost immediately. Subsequent repeated failures to make payments falling due triggered an “Event of Default”. On or about 24 September 2025, Capital Securities elected to terminate the Deed and demanded payment of the total loan outstanding in the amount of $1,725,622.90. A demand was sent to Events by Lush. Separate demands were made to Ian and Christine under their Guarantees. No amounts were repaid.
On 30 October 2025, Capital Securities commenced proceedings in the Supreme Court seeking possession of the Rosemeadow property. No defence was filed. On 12 December 2025, orders for default judgment were entered against Events by Lush for possession of the Rosemeadow property.
On 18 December 2025, the applicants were given leave by Slattery J, sitting as Equity Duty Judge, to file a motion to set aside that default judgment. A stay of enforcement of the default judgment was granted until 27 February 2026. On 18 December 2025, a notice of motion seeking to set aside the default judgment was received by the respondent, however that motion was not filed.
“1. Ms Clare Margaret Perry, also known as Clare Margaret Kennedy, is granted leave to represent the First Defendant in these proceedings.
- Ms Clare Margaret Perry is not granted leave to represent the Second or Third Defendants. The Second and Third Defendants are to appear on their own behalf or by a solicitor.
- The First Defendant is to file with the Registry and serve on the Plaintiff by midday on Monday 23 March 2026:
(a) its Notice of Motion seeking to set aside the default judgment entered against it on 12 December 2025, returnable before Sirtes J at 9am on 13 April 2026; and
(b) an affidavit annexing a draft proposed Defence (in the approved form) upon which it intends to rely if the default judgment were set aside.
- That Notice of Motion, and the Plaintiff’s related application for a writ of execution and costs against the First Defendant, is listed for hearing at 9am on 13 April 2026.
- By midday on Monday 23 March 2026, the Second Defendant and Third Defendant are to file with the Registry and serve on the Plaintiff a Defence or Defences (in the approved form) to the Statement of Claim filed on 30 October 2025. If either or both of those Defendants fail to comply with this order, default judgment will be entered against that or those Defendants in Chambers.
- The stay ordered by Slattery J on 18 December 2025, and extended by the Common Law Registrar on 27 February 2026, is extended until 5pm on 13 April 2026.”
“1. The First Defendant, through the Second or Third Defendant, is to email to the Chambers of Justice Sirtes a medical certificate to verify the basis of the application by 4pm on 24 March 2026.
- By 4pm on 24 March 2026, the First Defendant is to serve on the Plaintiff and email to the Chambers of Justice Sirtes an unsealed copy of the proposed Defence upon which it intends to rely if the default judgment were set aside.
- By 4pm on 24 March 2026, the Second Defendant and Third Defendant are to serve on the Plaintiff and email to the Chambers of Justice Sirtes an unsealed copy of the Defence upon which they intend to rely.
- The time for compliance with Orders 3 and 5 entered on 18 March 2026 is extended until 4pm on 26 March 2026.”
Order 2 was complied with. Part of order 3 was complied with. That is, Events by Lush filed a draft defence, as did Ian. Christine did not comply with order 3.
On 27 March 2026, default judgment was entered against Christine, who had not complied with the orders of the court and had still not filed a proposed defence. Those orders were:
“1. Judgment for the Plaintiff against the Second Defendant.
- The Second Defendant is to give to the Plaintiff possession of the following land: The Second Defendant’s registered interest in the land comprised in certificate of title folio identifier XXX/XXXXXX, being the land situated at and known as XX XXXXXXX XXXXX, Ambarvale in the State of New South Wales.
- The Second Defendant is to pay the Plaintiff’s costs of the proceedings.”
On 31 March 2026, Events by Lush attempted to file a motion seeking to set aside the default judgment entered against it. A motion seeking to set aside the orders made on 27 March 2026 was also sought to be filed on behalf of Christine.
On 13 April 2026, the matter came before Sirtes J. Leave was sought for the filing of the two notices of motion:
“[24] …
(1) the First Defendant’s Notice of Motion to set aside the default judgment entered against it on 12 December 2025 (and ancillary orders); and
(2) the Second Defendant’s Notice of Motion to set aside the default judgment entered against her on 27 March 2026 (and ancillary orders).”
The primary judge concluded that Events by Lush had not shown it had a bona fide defence. Several possible defences were raised in the draft proposed defence: the Contracts Review Act 1980 (NSW); unconscionable conduct pursuant to s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth); unconscionability in equity; unconscionability on the basis of “asset-based” lending by advancing the loan under the Deed primarily on the value of the security properties rather than an ability to service the debt (and a failure to obtain or verify income documentation); and the existence of special disadvantage due to the purported urgency, financial pressure and inequality of bargaining power in the circumstances. His Honour found there was no evidence providing any factual support for these contentions.
The available documentary evidence was contrary to the version of events advanced by Events by Lush. His Honour found that Events by Lush was advancing these defences for the purpose of attempting to delay the proceedings. There was no bona fide defence to the case brought by Capital Securities.
The primary judge concluded that Christine did not have a bona fide defence. Christine had claimed in her draft defence that she was in a position of special disadvantage and that it was unconscionable for the respondent to have accepted her as a guarantor. She argued that she was under pressure when signing, was not appropriately advised, and did not enter the transaction for her own benefit.
His Honour found it significant that Christine had sworn statutory declarations witnessed by an independent solicitor that she had received independent legal advice about the transactions. This critical fact was not addressed in Christine’s 26 March 2026 affidavit. His Honour was not persuaded that the second applicant had a bona fide defence to the respondent’s claim.
His Honour noted that Ian had previously complied with the court’s orders to file his defence and no judgment had been entered against him. Ian did not, therefore, need to persuade the court of anything. Capital Securities nonetheless submitted that the defence by Ian should be struck out for essentially the same reasons as those relied upon in argument against the setting aside of the default judgments entered against Events by Lush and Christine, namely, that the defence lacked a bona fide basis. The primary judge, after considering the evidence before him, concluded the defence was deficient in a number of ways and found that the defence as pleaded was “embarrassing” in the sense articulated by Hodgson JA (with whom Mason P and Handley JA agreed) in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44 at [20]-[21], and that it would inevitably fail.
His Honour struck out the defence but granted Ian leave to replead his defence upon condition that he file at the same time an affidavit explaining the circumstances by which he entered the loan, signed his statutory declaration as guarantor, and providing details of his receipt of independent legal advice.
The orders made by the primary judge were as follows:
“(1) The Defendants’ Notice of Motion filed on 18 December 2025 be dismissed.
(2) The stay ordered by Slattery J on 18 December 2025 and subsequently extended be discharged.
(3) The First Defendant’s Notice of Motion filed on 13 April 2026 be dismissed.
(4) The Second Defendant’s Notice of Motion filed on 13 April 2026 be dismissed.
(5) The Plaintiff have leave to issue a writ of possession forthwith in respect of the land described as X XXXXXX XXXXX, Rosemeadow NSW, folio identifier XXX/XXXXXXX, with such writ to lie in the Registry for a period of 42 days from the date of this order.
(6) The Plaintiff have leave to issue a writ of possession forthwith in respect of the Second Defendant’s interest in the land described as XX XXXXXXX XXXXX, Ambarvale NSW, folio identifier XXX/XXXXXX, with such writ to lie in the Registry for a period of 42 days from the date of this order.
(7) The Third Defendant’s Defence be struck out pursuant to UCPR r 14.28.
(8) The Third Defendant be granted leave to file, by 4 pm on 1 May 2026, an Amended Defence to the Statement of Claim together with an affidavit setting out the facts and circumstances in which he signed the Deed.
(9) The First and Second Defendants pay the Plaintiff’s costs of the proceedings to date on an indemnity basis. This order supersedes previous costs orders made in these proceedings.
(10) The proceedings against the Third Defendant be listed for directions on 6 May 2026 at 9.30 am.”
“1. As against the Third Defendant, judgment for the Plaintiff for possession of the land described as 15 Tipping Place, Ambarvale in the States of New South Wales, Torrens Title folio identifier 408/261626.
- The Plaintiff have leave to issue a writ of possession forthwith in respect of the Third Defendant's interest in the land described as 15 Tipping Place, Ambarvale, NSW, Torrens Title folio identifier 408/261626, with such writ to lie in the registry until 2 June 2026.
3. The Third Defendant to pay the Plaintiff's costs of the proceedings to date on an indemnity basis.”
“1 Leave to appeal from the whole of the decision below.
2 Leave be granted to appeal from the interlocutory orders of the Honourable Justice Sirtes made on 26 March 2026 and 17 April 2026 in Supreme Court proceedings 2025/00418344.
3 The appeal be allowed.
4 The orders of the Honourable Justice Sirtes made on 26 March 2026 (entering default judgment against the Second Defendant in Chambers) and 17 April 2026 (dismissing the First Defendant’s Notice of Motion) be wholly set aside.
5 In lieu thereof, ordered that:
(a) The default judgment for possession entered against the First Defendant on 12 December 2025 be set aside pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Rule 36.15; and
(b) The default judgment for possession entered against the Second Defendant in Chambers on 26 March 2026 be set aside pursuant to UCPR Rule 36.15 and/or Rule 36.16.
6 An order that the execution of any Writ of Possession issued to the Sheriff of New South Wales in respect of the properties located at Ambarvale (15 Tipping Place, Ambarvale) and Rosemeadow be stayed pending the final determination of these appeal proceedings.
7 The Respondent pay the Appellants’ costs of this application, the motion for a stay, and the appeal.”
“1. Error of Law regarding Judgment Irregularity (UCPR Rule 36.15)
The primary judge erred in law by failing to identify and apply Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Rule 36.15. Notwithstanding that the self-represented Appellants inadvertently cited Rule 36.16 in the initiating application, the substantive evidence established that the Appellants’ Notice of Appearance had been backdated by the Registry to a date prior to the entry of default judgment. The primary judge erred by failing to find that the default judgment was irregular as a matter of law and must be set aside as of right.
- Error of Law - Entry of Judgment Contrary to Good Faith (UCPR Rule 36.15)
The primary judge erred by failing to find that the default judgment was entered in breach of good faith under UCPR Rule 36.15. The Respondent’s solicitors had express, written notice via email on 4 December 2025 that the Appellants intended to defend the proceedings, and that the Respondent’s own clerical naming errors on the Statement of Claim had technologically locked the Appellants out of the Online Registry Portal. Rushing to enter default judgment seven days later in light of this known technological barrier constitutes a breach of good faith.
3. Severe Denial of Procedural Fairness
The primary judge denied the self-represented Appellants procedural fairness by requiring the First Appellant to file a document explicitly designated by the Court's orders to be a ‘draft proposed Defence’ (Order 3 made on 18 March 2026), and subsequently determining the substantive merits of the dispute by dismissing the application on the basis that that very draft lacked absolute evidentiary support, thereby setting an impermissible procedural trap.
4. Failure to Exercise Discretion Justly and Safely (Civil Procedure Act s 56)
The primary judge erred in the exercise of his statutory discretion and failed to give effect to the overriding purpose under Section 56 of the Civil Procedure Act 2005 (NSW) by entering judgment in Chambers against the Second Defendant on 26 March 2026. His Honour failed to afford procedural fairness by completely ignoring written notice and medical evidence sent to Chambers prior to the 4:00 PM deadline, demonstrating that the Appellants had substantively complied via the portal but were prevented from completing technical registry steps due to their newborn infant being confined to the Neonatal Intensive Care Unit (NICU) in a critical condition.”
It appears that these grounds relate to the default judgment of 12 December 2025. The applicants submit that an application must be decided on the substance of the facts raised, “not merely the procedural rule label typed by unrepresented litigants”: Sargood Brothers v The Commonwealth (1910) 11 CLR 258.
The factual foundation of the applicants’ claim in these proposed grounds has three parts:
that the primary judge erred in law by failing to identify and apply Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 36.15, notwithstanding that the applicants “inadvertently cited UCPR rule 36.16”;
the applicants’ notice of appearance had been backdated by the Registry to a date prior to the entry of default judgment; and
alleged clerical naming errors on the Statement of Claim had technologically locked the applicants out of the courts Online Registry Portal.
As to the first matter, it was argued that “[u]nder UCPR 36.15, an irregular judgment must be set aside as of right, completely exempting the party from providing a bona fide defence on the merits (Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331).”
As to the second matter, the applicants submitted that “the record was retrospectively corrected as a matter of law” and “[a] default judgment entered while an appearance is active is inherently irregular (Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87).”
As to the third matter, it was submitted that the default judgment was obtained in breach of good faith, as the parties were “locked out” of the system in December 2025.
It was submitted that the primary judge did not err in failing to consider UCPR r 36.15. This rule was not relied upon in the underlying proceedings and had only been raised for the first time in the application for leave to appeal. Applying the test in Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd [2021] NSWCA 252 at [17]-[19], it is not necessary to exercise the discretion contained in that rule if doing so would be futile.
The respondent submitted that the notice of appearance the applicants now relied on was in fact of no moment to the overall dispute. The respondent maintained that a notice of appearance filed after the default judgment and subsequently backdated is not capable of vitiating a judgment. It was noted that the primary judge found Events by Lush had been served in early November 2025.
It was submitted that there was no denial of procedural fairness in the orders made on 18 March 2026 that Events by Lush file a proposed defence, and that this was not a “procedural trap”. It was argued that at this stage in the proceedings, it was entirely conventional to require a proposed defence be filed.
The respondent reiterated that it was Events by Lush that bore the onus to show it had a defence on the merits, per Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 at [52], [59]. It was the applicants’ choice not to lead any evidence in support of its defence.
The respondent submitted that the primary judge properly took into account the medical evidence given regarding the premature birth of Clare’s child and the health issues attending that birth. That evidence was referred to in the judgment. Nor was the evidence of the health issues of Christine “ignored”. It was also referred to in the judgment.
The respondent submitted the primary judge had regard to the overriding purpose. It was again expressly adverted to in the judgment. The primary judge did not consider the delay on the part of the applicants a significant consideration, it was the fact that the applicants lacked a bona fide defence that was important.
Finally, the respondent submitted that there was no procedural unfairness in the entering of the default judgment. Christine was given ample notice of the possibility of this outcome and how it would be brought about. The filing of her defence had already been extended three times and it had, at the time of the default judgment, still not been filed.
It is well established that, as a general rule, this Court will grant leave to appeal only in cases that involve issues of principle or of public importance, or where it is reasonably clear that an error has been made (that error going beyond the merely arguable) resulting in injustice: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38] and The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].
This case does not raise any issues of principle or of public importance. No reasonably clear error has been shown (going beyond the merely arguable).
The duty of the Court to self-represented litigants was explained in Chalik v Chalik [2025] NSWCA 136:
“[69] The question of the extent, if any, of assistance which a trial judge or appellate court should afford to an unrepresented litigant in civil proceedings is nuanced and has been the subject of many intermediate appellate judgments of this Court since Rajski was decided almost 40 years ago. Those decisions have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place: see, for example, Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48]; Jeray v Blue Mountains City Council [2010] NSWCA 153 at [14]. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], citing Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 at [18] per Lord Sumption.
[70] In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant ‘does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant’. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:
‘suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.’
[71] Handley JA expressed similar views more than 20 years earlier in Rowett v Westpac Banking Corp [1993] NSWCA 240:
‘Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge's role, as I have said, is that of an umpire.’”
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.
“[17] The general power to set aside a judgment or order contained in r 36.15 applies in relation to all judgments and orders, not merely those entered by consent or in default. The power is enlivened where it is shown that a judgment or order was entered ‘irregularly, illegally or against good faith’. Contrary to the applicants’ written submissions, proof of irregularity does not, without more, require the Court to set aside a judgment. Even where a judgment is shown to be irregular, the Court retains a discretion as to whether to exercise its power under r 36.15 to set aside that judgment.
[18] The requirement that ‘sufficient cause [be] shown’ is intended to ensure that the discretionary power to set aside an irregular judgment is exercised only where that exercise will not be futile. In Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302 at [45] Bryson JA (Hodgson and McColl JJA agreeing) said of r 12A of the District Court Rules 1973 (NSW), which is identical in its substance to r 36.15:
‘[Rule] 12A(1) requires “sufficient cause”, recognising the need for finality by protecting judgments from being set aside for slight or uncertain causes.’
[19] Whilst the discretion is unconstrained, it must be exercised judicially. It is unwise to attempt to lay down rules of universal application in the exercise of that broad discretion. Without seeking to impose artificial limits on the extent of the discretion, sufficient cause will usually be demonstrated where the irregularity caused injustice, and the injustice would be alleviated by setting aside that irregular judgment. Whilst not a formula having universal application, in this case there was no error in the primary judge’s description of the discretion as involving consideration of whether the applicant was ‘bound to lose’ the case on the evidence before him.”
“[52] In my opinion, an applicant seeking to set aside a judgment obtained after an undefended hearing does not have to show that a different result is likely should the judgment be set aside and a new trial ordered. However, the circumstances may be such, as Jordan CJ says, as to require “a reasonably clear case of merits to be shown”; that is, that it appear reasonably clearly that there is a defence capable of producing a different result. If that defence depends on facts, then there should be some evidence of those facts; and the circumstances may be relevant to the quality of the evidence that is required to show a defence on the merits in particular cases. Among such circumstances could be the degree of the applicant’s default, and hardship to the respondent.” (emphasis added)
The applicants’ submission that the backdated notice of appearance somehow vitiated the default judgment of 12 December 2025 must be rejected. The notice of appearance was filed after the default judgment had been entered. Capital Securities did not receive any notice of appearance prior to the default judgment being entered. In these circumstances, the backdating of the notice of appearance is of little consequence. The applicants’ submission that Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 addresses any matter relevant to this question must be rejected. That case concerned the basis upon which costs should be awarded. No question about any backdated notice of appearance arose.
In any event, the applicants were given ample opportunity by the primary judge to file any arguable defence they had after this time. The same reasoning applies to the applicants’ complaints about lack of access, for a period of time, to the Court’s online registry. It has not been shown that “clerical naming errors on the Statement of Claim” caused any difficulty on obtaining access to the Court’s online registry. Any issue, to the extent it existed, was cured by the ample subsequent opportunity given to the applicants by the primary judge to file a draft defence.
No basis for the grant of leave to appeal has been shown in the primary judge failing to exercise the UCPR r 36.15 power here. First, as was candidly acknowledged by the applicants, UCPR r 36.15 was not relied upon before the primary judge. Secondly, assuming UCPR r 36.15 had been relied upon, no irregularity going beyond the merely arguable was shown. Thirdly, even assuming UCPR r 36.15 had been relied upon, no sufficient cause has been shown, even arguably, to exercise the power. Borrowing from the language of Magnate Pro**jects, a reasonably clear case of merits was not shown and any defence, if available, depended on facts, and there was no evidence of those facts before the primary judge or in this Court.
To the extent that in oral submissions in reply Clare submitted that the applicants had been misled by their mortgage broker and/or their independent solicitor, no evidence of those matters was led before the primary judge or in this Court.
Although it was not addressed by the applicants’ grounds of appeal, we have separately considered the primary judge’s treatment of UCPR r 36.16 which provides for a further power to set aside or vary a judgment or order. No error was shown in the way his Honour addressed that rule.
These proposed grounds do not raise any issues of principle or of public importance. No reasonably clear error has been shown (going beyond the merely arguable).
The applicants complain about the order made that the first applicant file a draft defence on 18 March 2026 and the subsequent conclusions drawn by the primary judge about the draft defence in the judgment of 17 April 2026.
It is not correct that the primary judge dismissed “the case on its merits without warning” or that his Honour “set an impermissible procedural trap.” His Honour carefully considered the draft defence on the basis of a correct understanding of the law and reached a decision that there was no bona fide defence available.
At the risk of repetition, a reasonably clear case of merits was not shown and any defence, if available, depended on facts, and there was no evidence of those facts before the primary judge or in this Court.
This proposed ground does not raise any issues of principle or of public importance. No reasonably clear error has been shown (going beyond the merely arguable).
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
…
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)—
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
(6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person—
(a) provides financial assistance or other assistance to any party to the proceedings, and
(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
“[26] The application for leave was not opposed by the Plaintiff. Shortly stated, the First and Seconds Defendants relied on a combination of factors including the medical circumstances surrounding the birth of Ms Clare Perry’s child, difficulties in attempting to file documents through the Court’s ‘Lawlink’ portal, the absence of funds to pay the necessary filing fees, and the significant health issues caused by the Second Defendant’s age. The Second Defendant deposed that these issues have impacted her ability to independently manage her affairs, including these proceedings.”
No error has been shown in the way his Honour addressed these issues.
This proposed ground does not raise any issues of principle or of public importance. No reasonably clear error has been shown (going beyond the merely arguable).
There is no issue shown that would warrant the grant of leave to appeal in this case. The applicants have not shown a reasonably clear injustice going beyond something that is merely arguable.
Leave to appeal should be refused with costs.
For the foregoing reason we make the following order:
Leave to appeal is refused with costs.
We note in making this order that the stays granted by Price AJA on 27 July 2026 of:
the execution of the writ of possession in respect of the Ambarvale property; and
the stay of enforcement of the orders made by Sirtes J on 17 April 2026
come to an end.
**********
Events by Lush Pty Ltd
Capital Securities Mortgages Pty Ltd
(2001) 54 NSWLR 135
(1910) 11 CLR 258
(1986) 161 CLR 141
(2013) 82 NSWLR 268
(2006) 68 NSWLR 193
Leave to appeal was refused with costs, and the stays granted on 27 July 2026 came to an end.
On 27 February 2026, the matter was listed before Sirtes J on 18 March 2026. The stay of enforcement was extended by consent until 18 March 2026.
On 18 March 2026, another director of Events by Lush, Ms Clare Margaret Perry, who we will refer to as Clare, sought leave to appear for Events by Lush. Leave was granted for her to do so. On 18 March 2026, the following orders were made: