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[2022] NSWSC 1666

Di Gregorio v Lumi Finance Pty Ltd

Dismiss the second plaintiff’s summons filed on 4 February 2022 with costs.

Catchwords

JUDGMENTS AND ORDERS – amending, varying and setting aside – application to set aside orders – application for a declaration that the defendant’s statement of claim was incompetent – where plaintiff has previously applied unsuccessfully to have default judgment set aside – no basis established – application dismissed

Cases cited

  • Kuksal v Lumi Finance Pty Ltd[2021] NSWSC 1430

Judgment

  1. [1]

    HIS HONOUR: On 5 November 2021, on the application of Lumi Finance Pty Ltd by notice of motion filed on 26 May 2021 in proceedings commenced by Shivesh Kuksal by summons filed on 9 April 2021, her Honour Harrison AsJ dismissed the proceedings commenced by Mr Kuksal as incompetent: Kuksal v Lumi Finance Pty Ltd [2021] NSWSC 1430. Familiarity with her Honour’s decision is assumed for the purposes of these reasons.

  2. [2]

    By that summons, Mr Kuksal had sought to appeal from the decision of a Magistrate dismissing his motion in the Local Court to set aside a default judgment obtained against him by Lumi Finance entered on 13 March 2020 and an order that he be let in to defend. Mr Kuksal’s summons did not include any application for leave, nor any statement of the reasons why leave should be granted. Part of her Honour’s detailed, thorough and comprehensive reasons included her analysis that Mr Kuksal had no entitlement to leave to appeal. It was as follows:

  3. [3]

    After having dealt with the competing arguments, her Honour expressed her conclusion on this issue as follows:

  4. [4]

    Now by summons filed on 4 February 2022, Maria Di Gregorio and Mr Kuksal seek the following orders:

  5. [5]

    Ms Di Gregorio was not an active party before me and sought no orders or relief.

  6. [6]

    There is no basis upon which Mr Kuksal is entitled to have the orders of her Honour set aside. Despite his extensive and regrettably discursive submissions to the contrary, Mr Kuksal has not established any. Mr Kuksal did not appeal from her Honour’s decision, and certainly did not do so within time. These proceedings do not in any event amount to an appeal from her Honour’s judgment properly understood.

  7. [7]

    Moreover, notwithstanding the fact that the default judgment against Mr Kuksal remains on foot, the basis for a declaration that Lumi Finance’s statement of claim in the Local Court “was incompetent” has not been adequately identified before me in the first place and is in any event a matter that Mr Kuksal presumably remains entitled to agitate in that Court in the second place.

  8. [8]

    In my opinion, Mr Kuksal’s summons filed on 4 February 2022 should be dismissed with costs.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.