Provident Capital Limited v Ross Leslie Norton [2012] NSWSC 17

Provident Capital Limited v Ross Leslie Norton [2012] NSWSC 17

The defendants did not establish that the process server misrepresented the nature of the consent judgment or otherwise acted irregularly, illegally or without good faith, so UCPR 36.15 was not enlivened. Even if UCPR 36.16(2)(b) applied, the Court would not set aside the judgment because the plaintiff and the Court were entitled to rely on the defendants' signatures, there was no injustice or unconscionability attributable to the plaintiff, and the defendants had not shown a defence to possession based on mortgage default.

Jurisdiction
Australia
Judgment Date
01 February 2012
Procedural Posture
Interlocutory Application to Set Aside a Consent Judgment for Possession and Costs / Amended Notice of Motion
Outcome
The defendants' amended notice of motion was dismissed; the stay of execution of the writ of possession was lifted; costs were reserved.
Legal Topics
['application to Set Aside Consent Order' 'consent Judgment' 'writ of Possession' 'good Faith Under UCPR 36.15' 'setting Aside Judgment Under UCPR 36.16' 'mortgage Default']
['practice and Procedure' 'real Property' 'mortgage Law'] ['application to Set Aside Consent Order' 'consent Judgment' 'writ of Possession' 'good Faith Under UCPR 36.15' 'setting Aside Judgment Under UCPR 36.16' 'mortgage Default']

Case Brief

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Procedural Posture

Interlocutory Application to Set Aside a Consent Judgment for Possession and Costs / Amended Notice of Motion

Legal Issues

  1. 1 ['Whether the consent judgment was entered irregularly, illegally or against good faith within the meaning of UCPR 36.15.' 'Whether UCPR 36.16(2)(b) was enlivened because judgment was entered in the absence of a party.' 'Whether the process server misrepresented the consent judgment as an acknowledgement of receipt of the statement of claim.' 'Whether the defendants showed sufficient cause or a defence warranting the setting aside of the consent judgment and writ of possession.']

Ratio Decidendi

The defendants did not establish that the process server misrepresented the nature of the consent judgment or otherwise acted irregularly, illegally or without good faith, so UCPR 36.15 was not enlivened. Even if UCPR 36.16(2)(b) applied, the Court would not set aside the judgment because the plaintiff and the Court were entitled to rely on the defendants' signatures, there was no injustice or unconscionability attributable to the plaintiff, and the defendants had not shown a defence to possession based on mortgage default.

Court Disposition

The defendants' amended notice of motion was dismissed; the stay of execution of the writ of possession was lifted; costs were reserved.

Orders

  • ["The defendants' amended notice of motion filed on 7 October 2011 be dismissed." 'The stay of execution of the writ of possession granted on 11 October 2011 is lifted.' 'The costs of the notice of motion are reserved, pending further argument.']