Commonwealth Bank of Australia v Wales [2012] NSWSC 407

Commonwealth Bank of Australia v Wales [2012] NSWSC 407

The default judgment was set aside under r 36.16(2) because, in the context of Ms Wales having lodged a hardship-related dispute with the Financial Ombudsman Service and having negotiated a resolution with the bank, the bank's failure to give proper notice of the default judgment motion deprived her of the opportunity to have a hardship application determined by the Financial Ombudsman Service or the court before judgment. That provided a proper basis to exercise the discretion even though she had no defence to the bank's claim.

Jurisdiction
Australia
Judgment Date
27 April 2012
Procedural Posture
Proceedings for Possession and Judgment in a Money Sum Arising Out of a Home Loan Agreement Secured by a Mortgage / Interlocutory Application by the Defendant to Set Aside Default Judgment and Stay a Writ of Possession
Outcome
Defendant's application to set aside default judgment granted; writ of possession stayed.
Legal Topics
['default Judgment' 'writ of Possession' 'hardship Provisions Under the National Credit Code' 'financial Ombudsman Service Dispute Resolution' 'notice of Application for Default Judgment']
['mortgages' 'civil Procedure' 'consumer Credit'] ['default Judgment' 'writ of Possession' 'hardship Provisions Under the National Credit Code' 'financial Ombudsman Service Dispute Resolution' 'notice of Application for Default Judgment']

Case Brief

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Procedural Posture

Proceedings for Possession and Judgment in a Money Sum Arising Out of a Home Loan Agreement Secured by a Mortgage / Interlocutory Application by the Defendant to Set Aside Default Judgment and Stay a Writ of Possession

Legal Issues

  1. 1 ['Whether the default judgment should be set aside as irregularly entered or entered against good faith under r 36.15(1) of the Uniform Civil Procedure Rules 2005 because the supporting affidavit was inaccurate and the defendant was not given notice of the motion.' 'Whether the default judgment should be set aside under r 36.16(2) of the Uniform Civil Procedure Rules 2005 although the defendant had no defence on the merits to the mortgage possession claim.' "Whether the bank's conduct and failure to give notice of the default judgment motion deprived the defendant of an opportunity to pursue hardship remedies under the National Credit Code."]

Ratio Decidendi

The default judgment was set aside under r 36.16(2) because, in the context of Ms Wales having lodged a hardship-related dispute with the Financial Ombudsman Service and having negotiated a resolution with the bank, the bank's failure to give proper notice of the default judgment motion deprived her of the opportunity to have a hardship application determined by the Financial Ombudsman Service or the court before judgment. That provided a proper basis to exercise the discretion even though she had no defence to the bank's claim.

Court Disposition

Defendant's application to set aside default judgment granted; writ of possession stayed.

Orders

  • ['The default judgment entered against the defendant on 13 October 2011 be set aside.' 'The writ of possession issued on 2 November 2011 is stayed until 5 pm on Monday, 7 May 2012.']