Adelaide Bank Limited v BMG Poseidon Corp Pty Limited [2008] NSWSC 68

Adelaide Bank Limited v BMG Poseidon Corp Pty Limited [2008] NSWSC 68

The judgment was not entered irregularly, illegally or against good faith because, although the defendants had earlier indicated reliance on an indulgence from the bank, by 24 February 2006 they were on notice that solicitors had been instructed to proceed to judgment. The possession order should not be set aside because the property had been sold to a bona fide third party, and the defendants established no arguable defence to the debt: hardship was not a defence, the contractual penalty charges were not disputed as contractually payable, and the plaintiff had rights after non-compliance with notices under section 57(2)(b) of the Real Property Act 1900 to sell the security property, call...

Jurisdiction
Australia
Judgment Date
12 February 2008
Procedural Posture
Application to Set Aside Default Judgment in Common Law Division Proceedings / Notice of Motion to Set Aside Default Judgment Entered on 3 April 2006
Outcome
Application dismissed; parties to be heard as to costs.
Legal Topics
['default Judgment' 'application to Set Aside Judgment' 'mortgage Enforcement' 'guarantees' 'promissory Representation' 'reliance' 'possession of Land']
['common Law' 'civil Procedure' 'banking and Finance' 'real Property'] ['default Judgment' 'application to Set Aside Judgment' 'mortgage Enforcement' 'guarantees' 'promissory Representation' 'reliance' 'possession of Land']

Case Brief

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Procedural Posture

Application to Set Aside Default Judgment in Common Law Division Proceedings / Notice of Motion to Set Aside Default Judgment Entered on 3 April 2006

Legal Issues

  1. 1 ['Whether the default judgment should be set aside under UCPR 36.15 because it was entered irregularly, illegally or against good faith.' "Whether the default judgment should be set aside under UCPR 36.16 because the interests of justice required that the defendants be permitted to contest the plaintiff's claim." 'Whether the defendants established an arguable defence to the judgment debt.' 'Whether alleged representations by the plaintiff or its agent caused the defendants not to file appearances.']

Ratio Decidendi

The judgment was not entered irregularly, illegally or against good faith because, although the defendants had earlier indicated reliance on an indulgence from the bank, by 24 February 2006 they were on notice that solicitors had been instructed to proceed to judgment. The possession order should not be set aside because the property had been sold to a bona fide third party, and the defendants established no arguable defence to the debt: hardship was not a defence, the contractual penalty charges were not disputed as contractually payable, and the plaintiff had rights after non-compliance with notices under section 57(2)(b) of the Real Property Act 1900 to sell the security property, call...

Court Disposition

Application dismissed; parties to be heard as to costs.

Orders

  • ['The application is dismissed.' 'The parties will be heard as to costs.']