Mace v Cavanagh & Anor [2025] VSC 311

Supreme Court of Victoria|2025-06-04|Before: Goulden AsJ

For the reasons given above, I will set aside the interlocutory judgment in default entered on 2 March 2023. In view of my finding that the default judgment was irregularly obtained, I will order that the plaintiff pay the first defendant's costs of and incidental to the application.
Should the second defendant seek its costs of the hearing, which it attended, but in which it did not participate, I will consider such application on the papers.

[1] Affidavit of Peter John Robertson Gauld affirmed 28 February 2023, [3] ('Gauld Affidavit').

[3] Affidavit of Margaret Catherine Cavanagh sworn 13 March 2025, [21] ('Cavanagh Affidavit').

[4] The time for filing a notice of appearance, being the period of not less than 10 days after service as stated in the writ in accordance with r 8.04 of the Rules, had expired by the time the amended statement of claim was filed.

[5] Lloyd v Dixon [1952] VicLawRp 34; [1952] VLR 434, 436.

[6] The Court invited further submissions from the parties concerning the question whether the judgment in default had been irregularly entered in circumstances where the Gauld Affidavit in support of judgment in default of defence was affirmed on 28 February 2023 and where the first defendant submitted (First Defendant's Outline of Submissions dated 20 March 2025, [31] ('Submissions')), and gave evidence (Cavanagh Affidavit [36]), to the effect that she was advised that her defence was due on 1 March 2023, being 30 days after her notice of appearance was filed. It was further submitted in the Submissions that the notice of appearance was filed 'within time' (Submissions [19]). However, given the first defendant's admission that she was served on 5 January 2023, a closer examination of the facts reveals that the notice of appearance was filed late, and by operation of r 36.06, the time for service of the defence commenced to run from the date of filing and service of the amended statement of claim.

[7] Cavanagh v Mace [2023] VSC 670 ('Probate Proceeding Reasons').

[8] The version of the statement of claim that has been amended in its title to alter the party names and which was filed and served with the amended writ pursuant to the 19 December 2024 orders, was the original statement of claim filed in the proceeding in December 2022, rather than the amended statement of claim filed on 23 January 2023.

[9] [1999] VSC 206 ('Jindra').

[13] Australia and New Zealand Banking Group Limited v Kostovski (Supreme Court of Victoria, Chernov J, 2 July 1997) ('Kostovski').

[15] National Australia Bank Ltd v Meehan (Supreme Court of Victoria, Ormiston and O'Bryan JJ, 24 February 1994).

[16] As discussed in n 6.

[17] CBA v Sky Empire Pty Ltd & Ors [2006] VSC 193, [15] ('Sky Empire'). Mr Gauld gave evidence in his affidavit in support of the default judgment that he 'had not received' a defence at the time of affirming his affidavit. That form of words was held not to be sufficient to prove the default in service of the defence in Sky Empire. However, given Mr Gauld was a principal of his firm, Gauld & Co, this was sufficient proof of default, see Soderstrom v Minas [2011] VSC 361, in which Sky Empire was distinguished on this point.

[19] Evans v Bartlam [1937] AC 473, 480.

[20] Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34.

[21] Day v RAC Motoring Services Ltd [1999] 1 All ER 1007, 1010.

[22] The first defendant denies instructing her solicitors to try to engage only a female barrister.

[23] Kostokanellis 607; White v Dortenzio [2004] VSC 381, [9].

Court (General Civil Procedure) Rules 2015

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