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 his lawyers. It does not establish that Mr Anderson was unable to provide any such funds or that he was impecunious.

31 The affidavit of Mr Anderson does not add greatly to the submission. Mr Anderson's affidavit indicates that he is presently unemployed, and that he expects that he will owe money to the Australian Taxation Office. It also includes references to the balance of a PayPal account containing the proceeds he earned by selling the Infamous mod. It says nothing about his net financial position or whether he owns any other assets.

32 Further, the evidence on which Mr Anderson seeks to rely comprises a single affidavit which appears to have been drafted by himself. The fact that Mr Anderson may be impecunious does not explain the lengthy delay in preparing and filing that affidavit.

33 Mr Anderson's affidavit does not explain what he was doing during the period in which Mr Macinnis submitted Mr Anderson was "incommunicado" or why he was not communicating with his lawyer in the lead up to expiry of the self-executing order. While it appears from Mr Macinnis' affidavit that he tried to contact the respondent using the incorrect mobile number, it is equally apparent that Mr Macinnis had other methods to communicate with Mr Anderson, including by email. In circumstances where Mr Anderson was aware both of the self-executing order and the potential consequences if he were to fail to comply with it, the lack of any explanation in Mr Anderson's affidavit as to why he did not respond to Mr Macinnis is significant.

34 Notwithstanding the lack of a satisfactory explanation for the respondent's default, it is appropriate in the circumstances of this case to consider the evidence filed by the respondent for the purpose of determining whether it would be in the interests of justice to set aside the judgment.

Existence of an arguable defence

35 At the hearing of the interlocutory application, Mr Macinnis indicated that he had instructions that all evidence Mr Anderson wished to rely upon at the hearing was contained in Mr Anderson's affidavit. He submitted that, based on that evidence, the respondent had a "triable" defence and that to dismiss the respondent's application in those circumstances would be unjust. Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024