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 consider whether the party seeking to set aside the judgment has demonstrated that there is a satisfactory explanation for their failure to appear and that there exists an arguable defence to the other party's claim: Amirbeaggi as trustee of the bankrupt estate of John Mamdouh Hanna v Kamel (No 3) [2020] FCA 1202 at [10]–[12] per Yates J.

23 The interlocutory application before me raises broader considerations because it concerns not merely a failure to appear, but a failure to comply with orders of the Court made with the express consent of the parties requiring affidavit evidence to be filed by a certain time and which, in the case of the self-executing order, expressly provided for the consequences that would follow (in the absence of some other order) in the event the order was not complied with.

THE PARTIES' SUBMISSIONS

24 In the present case it was submitted by Mr Macinnis for the respondent that Mr Anderson's default had been cured with the filing of Mr Anderson's affidavit, that his delay could be explained, and that the evidence gave rise to a "triable" defence. Mr Macinnis submitted that it would be unjust in those circumstances to prevent Mr Anderson from defending the proceedings.

25 The applicants' counsel submitted that the delay was significant and largely unexplained, and that the evidence of the delay was itself filed out of time. They submitted that Mr Anderson's evidence did not show any arguable defence. They submitted that the interlocutory application should be dismissed with costs.

CONSIDERATION

26 The question is whether the judgment should be either varied or set aside so as to relieve the respondent of the consequences of his default. There are, in my opinion, four main considerations relevant to the present application: first, the respondent's explanation for his default; second, whether the respondent has an arguable defence to the claims pleaded against him; third, what prejudice the respondent will suffer in the event that the orders sought by him are not made; and fourth, what prejudice the applicants will suffer in the event that the orders sought are made. Also relevant are broader considerations relevant to the interests of justice including the overarching purpose referred to in s 37M of the Act.

Explanation for the delay

27 Mr Macinnis submitted that the delay was caused by a combination of the following factors: Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024