ANZ Banking Group Ltd v Driffill [2016] NSWSC 1138

ANZ Banking Group Ltd v Driffill [2016] NSWSC 1138

The Court found that Mr Driffill was properly served with the statement of claim and his evidence to the contrary was not credible, being rebutted by his own admissions in other proceedings and documents. Consequently, default judgment was regularly entered. On the merits, the Court found no triable defence because Mr Driffill could not establish that any alleged breach by the bank caused him loss; his property position was materially unchanged and any claim of consequential loss was too remote.

Parties
Plaintiff/respondent: Australia and New Zealand Banking Group Ltd; Defendant/applicant: Ian Adrian Driffill
Jurisdiction
Australia
Judgment Date
05 August 2016
Procedural Posture
Civil / Application to Set Aside Default Judgment and Parallel Equity Proceedings
Outcome
Applications dismissed; costs ordered against Mr Driffill in the Common Law proceedings; statement of claim dismissed and costs ordered against Mr Driffill in Equity proceedings.
Legal Topics
Application to Set Aside Default Judgment, Service of Process, Mortgage Lending, Set Off Defence, National Consumer Credit Protection Act, Possession of Land
Practice and Procedure Banking and Finance Application to Set Aside Default Judgment Service of Process Mortgage Lending Set Off Defence National Consumer Credit Protection Act Possession of Land

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Parties

Australia and New Zealand Banking Group Ltd

Plaintiff/respondent

Ian Adrian Driffill

Defendant/applicant

Procedural Posture

Civil / Application to Set Aside Default Judgment and Parallel Equity Proceedings

Legal Issues

  1. 1 Whether judgment was entered irregularly for lack of service
  2. 2 Whether defendant has an arguable case on the merits for defence/set-off under National Consumer Credit Protection Act
  3. 3 Whether there was any triable issue for setting aside default judgment

Ratio Decidendi

The Court found that Mr Driffill was properly served with the statement of claim and his evidence to the contrary was not credible, being rebutted by his own admissions in other proceedings and documents. Consequently, default judgment was regularly entered. On the merits, the Court found no triable defence because Mr Driffill could not establish that any alleged breach by the bank caused him loss; his property position was materially unchanged and any claim of consequential loss was too remote.

Court Disposition

Applications dismissed; costs ordered against Mr Driffill in the Common Law proceedings; statement of claim dismissed and costs ordered against Mr Driffill in Equity proceedings.

Orders

  • The judgment debtor's notice of motion filed 4 May 2016 is dismissed.
  • The judgment debtor is to pay the plaintiff's costs of the notice of motion.