ANZ Banking Group Limited v Masood Falamaki [2002] NSWSC 847

ANZ Banking Group Limited v Masood Falamaki [2002] NSWSC 847

Although Dr Falamaki had a valid excuse for the delay in failing to file a defence, he did not show any arguable triable defence, set-off or cross-action. The mortgage and loan agreements were in default, the Bank had requested information that had not been supplied, the property was affected by a demolition order and diminished value, and there was no contractual or other duty on the Bank to advance further funds. The application to set aside the default judgment was therefore dismissed.

Jurisdiction
Australia
Judgment Date
04 September 2002
Procedural Posture
Application to Set Aside Default Judgment for Possession of Property and Debt / Supreme Court of New South Wales, Common Law Division; Application Refused
Outcome
Application refused.
Legal Topics
['setting Aside Default Judgment' 'excuse for Delay' 'triable Defence or Cross Action' 'jury Trial Entitlement' 'mortgage Default' 'further Loan Advances']
['civil Procedure' 'banking and Finance' 'mortgage Enforcement'] ['setting Aside Default Judgment' 'excuse for Delay' 'triable Defence or Cross Action' 'jury Trial Entitlement' 'mortgage Default' 'further Loan Advances']

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Procedural Posture

Application to Set Aside Default Judgment for Possession of Property and Debt / Supreme Court of New South Wales, Common Law Division; Application Refused

Legal Issues

  1. 1 ['Whether the application to set aside the default judgment should be heard before a jury.' 'Whether the applicant had an excuse for the delay in filing a defence.' "Whether the applicant showed a bona fide arguable triable defence, set-off or cross-action to the Bank's claim for possession and debt." 'Whether the Bank owed any contractual or other duty to advance further funds to the applicant in March or April 1999.']

Ratio Decidendi

Although Dr Falamaki had a valid excuse for the delay in failing to file a defence, he did not show any arguable triable defence, set-off or cross-action. The mortgage and loan agreements were in default, the Bank had requested information that had not been supplied, the property was affected by a demolition order and diminished value, and there was no contractual or other duty on the Bank to advance further funds. The application to set aside the default judgment was therefore dismissed.

Court Disposition

Application refused.

Orders

  • ["The applicant is to pay the respondent's costs of the application." 'The judgment is stayed until 5.00 p.m. on 20 September 2002.' 'In the event of the applicant succeeding in the High Court special leave application, he has liberty to apply, on two days notice, to Dowd J or the Duty Judge to extend the stay.' 'No...