Australia and New Zealand Banking Group Limited v Kurzer [2015] NSWSC 815

Australia and New Zealand Banking Group Limited v Kurzer [2015] NSWSC 815

The defendants did not demonstrate a good or arguable defence on the merits to the bank's claim or to the enforcement of security; although hardship was established, it was not attributable to the bank, and no substantive defence was identified. Further, the judgment was not entered irregularly, illegally or against...

Source-derived case information.

Parties
Plaintiff: Australia and New Zealand Banking Group Limited; First Defendant: Gary Kurzer; Second Defendant: Virginia Aghan
Jurisdiction
Australia
Judgment Date
25 June 2015
Procedural Posture
Application to Set Aside Default Judgment / Decision on Notice of Motion
Outcome
Defendants' notice of motion dismissed with costs; default judgment varied to rescind order for possession of the Terrigal property
Legal Topics
Default Judgment, Application to Set Aside Judgment, Unconscionable Conduct, Enforcement of Securities, Stay on Hardship Grounds
Civil Procedure Default Judgment Application to Set Aside Judgment Unconscionable Conduct Enforcement of Securities Stay on Hardship Grounds

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Parties

Australia and New Zealand Banking Group Limited

Plaintiff

Gary Kurzer

First Defendant

Virginia Aghan

Second Defendant

Procedural Posture

Application to Set Aside Default Judgment / Decision on Notice of Motion

Legal Issues

  1. 1 Whether the defendants have demonstrated an arguable defence on the merits to set aside default judgment
  2. 2 Whether the default judgment was entered irregularly, illegally or against good faith under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW)
  3. 3 Whether judgment should be stayed on the grounds of hardship

Ratio Decidendi

The defendants did not demonstrate a good or arguable defence on the merits to the bank's claim or to the enforcement of security; although hardship was established, it was not attributable to the bank, and no substantive defence was identified. Further, the judgment was not entered irregularly, illegally or against good faith. Setting aside the default judgment would be futile.

Court Disposition

Defendants' notice of motion dismissed with costs; default judgment varied to rescind order for possession of the Terrigal property

Orders

  • The default judgment entered 10 October 2013 is varied so as to rescind the order for possession of the Terrigal property.
  • The defendants' notice of motion is dismissed with costs.