IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
Not Restricted
Suitable for Publication	
General List

Case No. CI-23-01765

MESH & BAR PTY LTD (ACN 084 464 746)	Plaintiff	
		
v		
		
CMR STRUCTURE GROUP PTY LTD (ACN 639 173 149)	First Defendant	
		
and		
		
CHADI AYOUB	Second Defendant	

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JUDGE:	HIS HONOUR JUDGE WISE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	5 June 2024	
DATE OF RULING:	5 June 2024	
CASE MAY BE CITED AS:	Mesh & Bar Pty Ltd v CMR Structure Group Pty Ltd & Anor (Ruling) 	
MEDIUM NEUTRAL CITATION:	[2024] VCC 858		

RULING
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Subject:	Practice and Procedure
Catchwords: 	Self-executing order not complied with – defences struck out as a consequence - application to Judicial Registrar to enter judgment in default of defences - default judgment entered - application for review by Judge under Rule 84.03(3) of the County Court Civil Procedure Rules 2018 (Vic) - application under Rule 84.03(8)(b)(ii) for leave to rely on further affidavit – whether pleaded cause of action on which judgment entered is defective – whether judgment entered irregularly – held that pleading defective and judgment irregularly entered – judgment set aside.
Legislation Cited:	County Court Civil Procedure Rules 2018 (Vic), r 84.03
Cases Cited:	Jindra v Tech-Rentals Pty Ltd and Australia Pacific Technology Ltd [1999] VSC 206; Salinga Pty Ltd v Aviation Consolidated Holdings Pty Ltd [2021] VCC 220; Clayton v Thomas C. Denton & Co Pty Ltd [1972] VR 46; Lam v Gulic (1979) 25 ACTR 46; Iris Apartments Pty Ltd v Shaw [2022] VCC 1851; Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110; MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Publications:	Bullen & Leake, Precedents of Pleadings (12th English edition)

Ruling:	Judgment set aside.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr T Gorton	Kanji & Co Solicitors	
			
For the First Defendant	No appearance 		
			
For the Second Defendant	Mr P Noonan	Moray & Agnew	

HIS HONOUR:

1	I have before me today an application dated 2 May 2024 for judicial review of the decision of the Court constituted by Judicial Registrar Bennett made on 19 April 2024.  
2	Judicial Registrar Bennett entered judgment in default of defence as against the second defendant (“Mr Ayoub”).  This was made pursuant to an application by the plaintiff (“Mesh & Bar”).  Also before Judicial Registrar Bennett on that day was an application by Mr Ayoub to extend the date for him to file an affidavit of documents which he had evidently failed to file in a timely fashion.  The circumstances under which the default occurred are set out in Judicial Registrar Bennett’s ruling and should be referred to when reading these Reasons.  
3	In summary, after failing to comply with a self-executing order to make discovery of documents, CMR’s and Mr Ayoub’s defences were struck out pursuant to a self-executing order.  Mesh & Bar then applied to the Judicial Registrar to enter judgment against Mr Ayoub in default of defence.
4	Mesh & Bar’s claim in this proceeding is based on an “agreement to supply goods” alleged against CMR, which company is now in liquidation, and an alleged guarantee given by Mr Ayoub.  Judgment was entered against Mr Ayoub in the sum of $814,094.25 (the claim with interest) and costs.  
5	This judicial review is by way of a rehearing de novo, and as a consequence, I am not bound by the Judicial Registrar’s reasons, nor do I need to search for error in his reasons, as one would on appeal by way of rehearing.  The written submissions filed by the parties largely address the application on the basis that the principles to be applied were those relating to the setting aside of a self-executing order.  However, in his written submissions filed on 3 June 2024, Mr Noonan (counsel for Mr Ayoub) raised a further argument (which he had not run before the Judicial Registrar) that the pleaded case against his client was defective and, as such, judgment should not have been entered on the basis of that pleading at all.  In effect, he says that the judgment was entered irregularly and that his client is entitled to have it set aside ex debito justitiae.
6	The issues to be determined on this review are:
(a)	whether the pleading was defective, such that the judgment was irregular and should be set aside;
(b)	should leave be given to Mr Ayoub to rely on a further affidavit that was not in evidence before the Judicial Registrar; and
(c)	should the Court extend time to permit Mr Ayoub to file and serve an affidavit of documents and thus the judgment entered in default should fall away. 
7	For the reasons which follow – largely on an argument that was not put to the learned Judicial Registrar – the judgment entered against Mr Ayoub was irregular and must be set aside.
Was the judgment entered irregularly because the plaintiff’s pleaded claim was defective?
8	I will deal with the question of whether the pleading was defective first.  
9	There are two claims to be considered:
(a)	the claim of an agreement to supply goods on credit as against CMR; and
(b)	the claim on the Guarantee against Mr Ayoub.
The pleading of an agreement to supply goods on credit against CMR 
10	As against CMR, the claim is as follows:
“…
2. 	On or about 12 August 2020, [CMR] entered into a credit trading agreement contained in an application form used by [Mesh & Bar] dated 12 August 2020 (the Credit Account Application). 
3.	The material Terms and Conditions of Sale of the Credit Account Application were, inter alia, as follows:- 
(a) 	[Mesh & Bar] would supply goods to [CMR] on credit and on a running account to [CMR].
(b)  	All moneys payable by [CMR] to [Mesh & Bar] pursuant to the running account would be paid by [CMR] to [Mesh & Bar] by the last working day of the month after the month of invoice. 
(c) 	If payment is not made on time, [CMR] shall pay interest to [Mesh & Bar] on any amount owing at the rate of 3.00% above Westpac Banking Corporation’s Overdraft Business Rate. 
(d) 	If [CMR] defaults on any payment, or if in the opinion of [Mesh & Bar], [CMR] is unlikely to be able to meet its liability as it falls due then [Mesh & Bar] may at its option require payment forthwith of all amounts owing by [CMR] to [Mesh & Bar], whether or not such amounts are then due for payment including without limitation, all interest, administration and collection charges and all legal costs and any payment by [CMR] shall first be applied to such charges and costs. 
4. 	At the trial of this action, [Mesh & Bar] will refer to the Credit Account Application for its full terms, true meaning and effect and by reference incorporates all of its terms into this pleading. 
5.	In or about the period from September 2022 to December 2022, in accordance with the Credit Account Application and at the request of [CMR], [Mesh & Bar] provided goods in accordance with [CMR’s] requests for an amount of $703,339.17. 
6. [Mesh & Bar] issued its tax invoices to [CMR] in accordance with the Credit Account Application. Details of those tax invoices totalling $703,339.17 unpaid and outstanding are particularised in the document marked “Annexure A” and annexed hereto. 
7. 	The total of the indebtedness to [Mesh & Bar] is $703,339.17 being the total outstanding purchase price of goods sold and delivered by [Mesh & Bar] to [CMR] as particularised in Annexure A. 
8.	In breach of its obligations to [Mesh & Bar] under the Credit Account Application, [CMR] has wrongfully failed and/or neglected to pay all outstanding sums due and payable by it to [Mesh & Bar] in accordance with the Credit Account Application.”
11	Mr Noonan says that this pleading is defective, in that it does not properly plead an agreement as between Mesh & Bar and CMR to supply goods on credit.  He submits that the plea at paragraph 2 is unorthodox, in that it does not distinctly allege an agreement between Mesh & Bar and CMR.  Rather, he submits, it alleges that CMR entered into an agreement in a form used by Mesh & Bar.  This is then defined as the “Credit Account Application”.  He submits that this does not distinctly allege that Mesh & Bar also entered into that same agreement or, put differently, there is no allegation that both parties entered into that agreement.  By reference to the definition of credit account application, he says that it is to be inferred from the face of the pleading that the document was in fact merely an application for credit.  
12	He further submits that when one looks at the credit application form itself, which was in evidence before the Judicial Registrar, it is clear that nowhere does the document indicate that the application for credit itself was accepted by Mesh & Bar.  Mr Noonan submits that, absent any plea of acceptance of what must only be an offer by CMR to enter into a credit agreement, there is no agreement properly pleaded.  
13	Mr Gorton (counsel for Mesh & Bar) suggested three bases on which it might be said that acceptance of the Credit Application occurred.  
(a)	First, he submitted that there may have been an “unpleaded act of acceptance shortly after the Credit Application”.  But he also frankly conceded that this was not pleaded, nor was there any evidence of this before me;
(b)	Secondly, he submitted that it was uncontroversial that hundreds of thousands of dollars of goods were in fact supplied by his client to CMR between August 2020 (the date of the Credit Application) and September to December 2022 (when the supply the subject of this proceeding occurred).  He submitted that this may constitute some implied acceptance of the Credit Application offer.  But he again frankly accepted that there was no evidence before the Court of these facts, that such facts were not pleaded at all, or as an act of acceptance of the offer to enter into a credit agreement; and
(c)	Thirdly, he submitted that the allegation of supply of goods in accordance with the Credit Application in paragraph 5 of the Statement of Claim, that occurred in September 2022 to December 2022, was a sufficient pleading of acceptance.  
14	In order to plead an agreement, certain matters must be specifically alleged.  In Bullen & Leake’s Precedents of Pleadings, the learned authors of what is regarded as a cardinal text on pleading say this in relation to pleading a contract or agreement:
“Where the action is brought upon an agreement not under seal, the Statement of Claim should show whether the agreement relied on is in writing or made by word of mouth or is to be implied or inferred from the conduct of the parties.  In all cases the date, the parties, and the general substance and effect of the agreement so far as is material, must be set out in the Statement of Claim.
In the case of a written agreement the document or documents containing it should be described sufficiently to identify it or them … In the case of an implied agreement the facts and circumstances from which the implication arises should be stated.
Where the agreement is to be implied from a series of letters, or conversations, or from circumstances, it is sufficient to allege the agreement as a fact, and to refer generally to the letters, conversations, or circumstances, without setting them out in detail (Hussey v Horne-Payne (1879) 4 App.Cas. 311).” 
15	The learned authors then give a number of precedent agreements which I refer to as examples of a proper pleading of an agreement.  
16	Precedent 149, headed “Claim based on Written Agreement”, reads as follows:
“1.   By a memorandum of agreement dated the ____ day of  _______, 19__, and made between the plaintiff and the defendant, the plaintiff agreed to sell and transfer to the defendant who agreed to purchase 1,000 shares in a company called X Y Ltd. at the price of £6,400”. 
17	Precedent 151, headed, “Claim based on Agreement contained in specific Documents”, reads as follows:
“1.	By an agreement made between the plaintiffs and the defendants, the plaintiffs agreed to purchase and the defendants agreed to sell and deliver ___ metres of Italian fabric …” 
18	These are merely examples of what is required by way of a proper pleading of an agreement.
19	In each case, the parties are named as being parties to the agreement and the general tenor, and mutuality, of the same agreement as between them is set out.  That is, that Party “A” agreed to do something and Party “B” agreed to do something.  
20	This requirement must be measured against the pleading of the case here.  
21	In respect of the alleged agreement for the supply of goods, it must be noted that paragraph 2 misleadingly pleads that CMR “entered into a credit trading agreement in an application form used by the plaintiff”.  I say “misleading” to the extent that it seems to me to be a misnomer to refer to what CMR did as having entered into any form of agreement.  A more accurate description of what occurred would have been a plea that, “on or about 12 August 2020, CMR applied for a credit account with Mesh & Bar.”  That seems to be the true import of what is alleged, rather than that CMR entered into any form of agreement.  The reason I say that is that a plea of an agreement necessarily requires that both parties have entered into the agreement alleged.  Generally speaking, as Bullen & Leake indicates, the parties and the fact of the agreement having been made as between them, must be pleaded. 
22	The importance of this requirement is to be found in the fact that nowhere is it clearly alleged in the pleading that the application for credit made by CMR was in fact granted or – to put it in contractual terms of offer and acceptance – that the offer by CMR to enter into a credit arrangement with Mesh & Bar was accepted by Mesh & Bar on any terms.  
23	At its highest, paragraph 5 of the Statement of Claim says that Mesh & Bar supplied goods to CMR between September and December 2022  “in accordance with the Credit Account Application”.  This may or may not be intended to be a plea that acceptance of the Credit Application alleged in paragraph 2 of the Statement of Claim is to be implied or inferred from the fact of the supply of goods by Mesh & Bar to CMR.  But it in no way complies with the requirement to clearly plead whether the Agreement relied upon was in writing or made by word of mouth, or is to be implied or inferred from the conduct of the parties.  Mr Gorton’s difficulty in clearly articulating what constituted the Agreement points up the lack of clarity in the pleading.  I note that I make no criticism of Mr Gorton, given that he did not author the Statement of Claim.  However, one suspects that there may well have been some document close to the date of the Credit Application by which Mesh & Bar clearly communicated to CMR that its application for credit had been accepted.  But no such document has been pleaded.  One also suspects that it may well be that there was some intervening supply of goods on credit sometime between August 2020 and September 2022 by which the Court might be asked to infer that Mesh & Bar had accepted CMR’s Credit Application.  However, again, no such conduct of Mesh & Bar has been clearly pleaded as conduct from which an acceptance of the Credit Application is to be inferred.  
24	The difficulty experienced by Mr Gorton in explaining where the acceptance is to be found pleaded is exacerbated by the failure of the pleader to have particularised the Agreement that was apparently sought to be alleged in paragraph 2 of the Statement of Claim.  This may have been deliberate because, in truth, what was pleaded as CMR having “entered into a credit trading agreement on a form used by the plaintiff” is not a pleading of agreement at all.  At best it is a plea of a contractual offer.  And then, one searches for a clearly particularised plea of acceptance within this pleading in vain.  Under those circumstances, it seems to me that the pleading of an “agreement for the supply of goods” is defective.  
The pleading of a guarantee against Mr Ayoub 
25	Turning to the Guarantee, it suffers from a similar, although not quite as serious, vice:  
“On or about 12 August 2020, [Mr Ayoub] entered into a written guarantee with [Mesh & Bar] (the Personal Guarantee) to induce [Mesh & Bar] to extend and/or continue to extend credit to [CMR] and/or forbear to sue.” 
26	The plea, therefore, is that Mr Ayoub “entered into a written guarantee with [Mesh & Bar]”.  When one goes to the Guarantee which was in evidence before the Judicial Registrar and is in evidence before me, this document, again, is executed by Mr Ayoub, but not by Mesh & Bar.  
27	Mr Noonan submits that the Guarantee, not have been executed as a deed or a deed poll, and absent a clear plea of acceptance of the offer to provide the guarantee, this, too, cannot form a valid contract guarantee.  
28	Mr Gorton rested his argument on the Guarantee on the same matters he relied upon in support of the alleged agreement between CMR and Mesh & Bar.  
29	Again, the plea that Mr Ayoub entered into a guarantee with Mesh & Bar does not withstand scrutiny of the document itself.  Nowhere is there a plea of some other means by which the parties consummated the “agreement” constituted by the unilaterally executed Guarantee, such as to have constituted it as a binding agreement.  
30	There may well be some other document or conduct which will be relied upon.  It may well be that the same conduct that might be relied upon by Mesh & Bar as some form of implied acceptance by conduct of the offer to guarantee exists, but nothing has been pleaded or particularised.  
The consequences of a defective pleading for a judgment entered in default of defence
31	In Jindra v Tech-Rentals Pty Ltd and Australia Pacific Technology Ltd, Warren J, as her Honour then was, dealt with a case where a default judgment was sought to be set aside as having been entered irregularly on the basis that the pleading itself was defective.  
32	After dealing with a number of what were said to be pleading irregularities, her Honour said this:
“In my view all of the objections raised by the applicants against the pleading are validly made. It follows that the amended counterclaim does not make out a cause of action against [the relevant defendants]. Insofar as it is necessary for the pleading to be amended it leads to the conclusion that the judgment was entered on the basis of allegations contained in the amended counterclaim which were defective. … .”
33	Her Honour continued:
“It is trite to say that a pleading must inform the other party of the claim made against that party and the facts upon which the claim is based and which in law entitle the plaintiff to the relief sought. The amended counterclaim does not meet the requirements of O13.02. If a plaintiff has entered judgment upon the basis of a counterclaim that is defective with respect to the very claim for which judgment is sought because a cause of action is not properly pleaded and does not comply with the Rules it follows that such judgment, if entered, is irregular and ought be set aside. In my view the judgment was, therefore, irregularly entered.” (Emphasis added)
34	In Salinga Pty Ltd v Aviation Consolidated Holdings Pty Ltd, Judicial Registrar Burchell, as her Honour then was, dealt with a similar case, where judgment had been entered in default of defence and an application was made to set it aside.  Her Honour said this:
“The starting point is that the courts compel stringent compliance with the Rules: ‘a plaintiff obtaining judgment by default must comply strictly with the rules of court in every respect.’
In Clayton v Thomas C. Denton & Co Pty Ltd,  Crockett J held:
‘The right of a plaintiff to enter judgment without proof of his claim upon non-compliance with a time limit is a measure giving a special privilege to the plaintiff and operating to the drastic disadvantage of the defendant. Accordingly, rules providing such a right ought to be construed strictly as against a plaintiff.’
Similarly, in Lam v Gulic, Blackburn CJ held:
‘In my opinion, it makes no difference that the irregularity is in the amount of the judgment, nor that the reason for the irregularity was a careless slip by the plaintiff’s solicitors. I do not think there are degrees of irregularity in judgments; a judgment is either regularly or irregularly entered. The contention of the plaintiff’s counsel, that I should exercise my discretion to allow him to move for an order under the slip rule, made, as it is, as a last minute method of shutting out a defence which on the evidence appears to have some merit, appears to me to be out of accord with procedural justice. The entry of judgment in default is a serious and important step, and if the judgment is vitiated by an error which could have been avoided by proper care on the part of the plaintiff’s solicitors, it does not lie in the mouth of the plaintiff to say that the defendant should not be allowed to enter an appearance which she could have entered at any time before the entry of valid judgment.’”
35	Her Honour continued:
“Where there is no defence to a SOC, each of the allegations in the SOC are taken to be admitted. These admissions then form the basis of the default judgment. Therefore, the specification of the causes of action and relief sought in the SOC must be precise.
 A default judgment entered on a SOC which does not plead all material facts necessary to establish a cause of action for the relief sought will be irregular and set aside. The court must give careful consideration to the SOC to ensure that all material facts are pleaded and that appropriate relief is expressly claimed.”
Conclusion as to defective pleading and irregularity of judgment
36	It is my view that the pleading of the Agreement between Mesh & Bar and CMR is defective and misleading.  It gives the impression of a pleaded agreement having been alleged, when it is not such a pleading at all.  It does not allege that Mesh & Bar and CMR agreed, in writing, that Mesh & Bar would supply goods on credit to CMR.  Rather, it dresses up what is merely an offer to contract as an agreement.  Nowhere is it clearly alleged that the offer was accepted and in what form.  It is not alleged whether the acceptance was in writing, by conduct, or otherwise.  No proper particulars of the pleaded supposed agreement, nor of any acceptance, have been provided.
37	The pleading is defective and does not properly plead the cause of action it purports to do.  
38	As to the Guarantee, it suffers the same fate.  
39	Under those circumstances, the judgment entered in default of defence was irregular and must be set aside.  
40	That is sufficient to dispose of the applications before me; however, in case I am wrong, I will briefly set out my reasons on the balance of issues for determination.
Application to admit further affidavit of Mr Ayoub
41	The affidavit seeks to proffer further detail as to the reasons for the failure to have complied with the self-executing order, that Mr Ayoub took steps to remedy the defective compliance at the earliest opportunity, and to put forward a new deposed defence.
42	On an application such as this, the law is as set out in paragraphs 6 to 9 of the Plaintiff’s Outline of Submissions.  Mr Noonan criticised the reliance of Mr Gorton on the decisions of C Tina Pty Ltd v Barham-Floreani and Bradford v Devlot 17 Pty Ltd, a decision of Kennedy J.  Although it might be said that those decisions ultimately stand for some different proposition, I do not need to dwell on those decisions in any detail.  Suffice to say that it seems clear that a policy evident in the County Court Civil Procedure Rules 2018 requiring parties to obtain leave of the Court to admit fresh evidence on a review from a decision of a Judicial Registrar is intended to ensure that a party does not hold back part of their case and conduct a “dry run” before a Judicial Registrar and then advance new material upon a review.  I also refer to the decision of Iris Apartments Pty Ltd v Shaw, in which Judge A Ryan of this Court ultimately found that, to the extent that fresh material was relevant, and therefore admissible, and having regard to the fact that the nature of a review is a hearing de novo, such material ought to be admitted.  
43	Mr Gorton says that the evidence in the fresh affidavit is not sufficiently detailed, does not provide chapter and verse as to what passed between Mr Ayoub and his prior solicitors, and raises more questions than it answers.  He says that it does not identify what was asked of his solicitors, nor in detail what advice they gave him.  He said that these matters fell within Mr Ayoub’s own knowledge and therefore he should have gone into evidence of these matters.  
44	It is my view that on an application such as this it is untenable to expect the Court to conduct what would effectively be a full trial as to what passed between Mr Ayoub and his solicitors.  Rather, from the matters deposed to I can and do infer that the task of receiving, interpreting, and diarising steps to be complied with in the conduct of litigation is the task of solicitors rather than clients.  I can infer that – as Mr Ayoub has deposed – his solicitors advised him of what needed to be done and he left it to them to take the necessary steps.
45	So, for example, it is open for the Court to infer that the default in meeting the deadline was likely that of his former solicitors, rather than that of Mr Ayoub.  I can also infer that it was his solicitors who determined that one affidavit from a director of CMR was sufficient compliance with Mr Ayoub’s own obligation to make discovery of documents.  So much is clear from the tram tracks of the affidavit prepared by the solicitors which indicated that the affidavit was filed on behalf of both CMR and Mr Ayoub.  Under those circumstances, I am prepared to accept the affidavit as fresh evidence going to this question and, in my view, I can make relevant inferences from that material.
46	The affidavit also puts forward a new proposed defence.  I regard the affidavit as relevant to the issues to be determined on this application.  I am mindful of the authorities that hold that the Court should exercise the power to admit fresh evidence on a review with care so as to discourage litigants from using the application before a Judicial Registrar as a “dry run”.  I am also mindful of Mr Gorton’s submission that this is precisely what Mr Ayoub has done.  Mr Gorton submits that Mr Ayoub has not been candid and has held evidence back, that he now puts on new defences that were not run before and thereby undermines the legal process by utilising the application before the Judicial Registrar as a “dry run”.
47	It is my view that this is not what has occurred here.  The solicitors engaged by Mr Ayoub came off the record two days prior to the application before Judicial Registrar Bennett.  If, as appears to be the case, those solicitors were less than diligent in dealing with CMR’s and Mr Ayoub’s defence of this claim, then I can infer that it was their less-than-diligent conduct that led to the manner in which the application was conducted before Judicial Registrar Bennett. 
48	Two days after new solicitors and counsel were engaged, they conducted the application before Judicial Registrar Bennett as best they could on short notice.  That they now have had further time to consider the matter and that they wish to put on further material and defences is not surprising.  
49	I also note that if it was the case that Mr Ayoub’s prior solicitors were responsible for causing the default, then it is entirely possible that he did not receive adequate legal representation until two days prior to the hearing of the applications before Judicial Registrar Bennett.
50	Under those circumstances, I do not infer that Mr Ayoub has forensically held material back and conducted the hearing before Judicial Registrar as a “dry run” in the sense deplored by the authorities.  Given this is a hearing de novo, I must consider the matter afresh.  I consider the material to be relevant and hence admissible and I note that Mesh & Bar has had the material for over a week, and thus has had ample time to consider it.  I intend to admit the material and to give it such weight as I consider appropriate.
Application to extend the date for the filing of the affidavit documents
51	Although the Judicial Registrar’s reasons do not govern the determination of this application before me, they are relevant and substantially accord with my own independent review of the material, and fresh consideration of it, save for two principal matters, and for my ultimate weighing up of what must be done to ensure that justice is served.
52	The legal principles to be applied on review are not in doubt.  The obligation is to do what justice requires and the non-exhaustive list of considerations set out in Jorgensen v Slater & Gordon Pty Ltd offer a useful guide.  In Jorgensen, Maxwell ACJ and Forrest AJA adopted what Newnes J in MTQ Holdings Pty Ltd v Lynch said regarding the considerations which should ordinarily be brought to bear in the exercise of this discretion.  The Court should have regard to at least the following matters:
(a)	the circumstances in which the self-executing order was made;
(b)	the reasons for non-compliance with it;
(c)	the prejudice to the defaulting party if relief were not granted; and
(d)	the prejudice to the innocent party if relief were granted.  
53	Their Honours further noted that:
“As to the reasons for non-compliance, it is of the first importance to ascertain whether the failure to comply was wilful, that is, was reflective of deliberate disregard of, or indifference to, the court’s order. … .”
(Footnote omitted.)
54	I note that it was a substantial consideration before Judicial Registrar Bennett that, in his view, no defence on the merits was properly shown by Mr Ayoub before him.  That is not the case before me.
55	Mr Ayoub has now deposed to and produced a proposed further amended defence that, in my view, provides a sound basis to conclude that there are triable issues worthy of consideration.  Those defences are that, first, he says that it was not clear that there was a credit agreement in force as between Mesh & Bar and CMR that was capable of fixing Mr Ayoub as the guarantor with liability under the Guarantee.  I have addressed this matter above and agree that this is a matter which is a triable issue.  It may be that this failure vitiates the Guarantee.  It may not.  The proposed defence, in all likelihood, will require Mesh & Bar to reconsider its claim and amend it to properly plead whether, and in what way, the Credit Application was accepted.
56	Secondly, Mr Ayoub deposes that the amount of credit to be guaranteed was “not unlimited and was always subject to a fixed limit”.  In this case, he says that it was $150,000, as that figure has been inserted in the Credit Application as the “monthly spend”.  The terms of the Credit Application required payment of invoices within the month.  This supports the plea that the Guarantee was fixed to an amount of $150,000.  Whether and how this might interrelate with the written terms of the Guarantee, including the indemnity clause, is a matter for trial.  But it certainly grounds a prima facie defence on the merits.  
57	Thirdly, he also says that he informed Mesh & Bar, when he left the company in November 2021, “that they would have to get someone else to sign a contract with them”.  Whether this statement was effective to revoke his guarantee going forward in the face of the revocation clause in the Guarantee is a matter for trial.  
58	I am not prepared to foreclose that argument simply on the basis that clause 8 of the Guarantee provides a particular way of revoking the Guarantee.  Whether this is a mandatory requirement, and is the exclusive method required by the Guarantee to revoke it, is a matter for trial.  It may be that on full argument it is found that having expressly brought to the notice of Mesh & Bar that they need to get “someone else to sign a contract with them” was sufficient notice in fact that Mr Ayoub was revoking his guarantee.  If that is so found, then he will be relieved of all liability, as the invoices sued upon post-date that notice.  
59	Finally, he says that Mesh & Bar withdrew credit from CMR in May 2021 – and thereafter provided credit again between September and December 2022.  He says that this is not the credit contract that was guaranteed.  This is a further issue for trial.
60	Now, Mesh & Bar have put on submissions going to whether Mr Ayoub has shown a defence on the merits.  For the reasons just discussed, it is my view that the matters raised by Mr Gorton are all matters for trial and that the proposed defence as pleaded would withstand a summary dismissal or strikeout application.  
61	The matters I have just rehearsed go to the third of the Jorgensen considerations, that is, the prejudice to the defaulting party if the relief were not granted.  To deprive Mr Ayoub of the opportunity to run a defence which does appear, on its face at least, to have some merit, would be a substantial prejudice.  
62	Whether this will have the knock-on effects deposed to by Mr Ayoub of bankruptcy and loss of his building licence is not a matter I need to determine.
63	With some justification, Mr Gorton submits that, had Mr Ayoub wished to make that submission good, he should have put on materials going to his assets and liabilities.  I tend to agree.  
64	Returning to the first of the Jorgensen factors, which is the circumstances in which the self-executing order was made, I agree with Mr Gorton and Judicial Registrar Bennett that those circumstances demonstrate an appalling failure to diligently conduct this litigation.  While Mr Ayoub has overarching obligations to conduct litigation diligently himself, having regard to his deposed limited education and his deposed reliance on his solicitors to guide him in this, it is my view that it is more likely a result of his solicitors’ lack of careful conduct than his.  At the very least, it is sufficient for me to conclude, as I do, that he has not wilfully failed to abide by Court orders.  
65	I also note in this regard that Mr Ayoub did seek to remedy the default in making discovery on 24 January 2024.  Although this is one month after the date required by the self-executing orders, and taking into account the Christmas Court shutdown, it does suggest that Mr Ayoub did not wilfully intend to ignore the Court’s orders and took the opportunity to remedy the default to the best of his ability as soon as he could.
66	I also note that no criticism has been made of the substance of the discovery that was made, albeit late, by CMR and Mr Ayoub. 
67	As to the fourth of the Jorgensen factors, which is the prejudice to Mesh & Bar, it is true that a trial date has been lost, that a fresh round of pleadings may be required and possibly some limited further discovery will be required if the judgment is set aside.  However, this can be accommodated for by an appropriate costs order.  It is also true that Mesh & Bar will bear a further litigation load in having to prosecute the matter to trial; however, this is a natural incident of Mesh & Bar having commenced this proceeding, and cannot be prejudice in the sense required by the authorities.  
68	The final matter that I give weight to is the fact that Mr Ayoub has engaged new solicitors and counsel who appear to have grappled with the true legal issues that arise in his defence of this claim.  This circumstance does give the Court more confidence that, moving forward, the proceeding can and will be dealt with in a timely fashion and in accordance with the overarching obligations required of practitioners and parties.
69	Taking all those matters into account and considering the matter globally, had I been required to do so, I consider that justice requires that the time for compliance with the discovery order be extended and the default judgment be set aside.
Conclusion
70	I wish to say that Mr Ayoub can expect no further indulgences in the conduct of this litigation and, should any further defaults occur, they will be met with the consequences that take into account his prior conduct and no doubt these Reasons for Decision.  
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Certificate
I certify that these 20 pages are a true copy of the ruling of his Honour Judge Wise delivered on 5 June 2024. 
Dated: 13 June 2024
Emily Broadbent
Associate to his Honour Judge Wise