NAB Group Ltd v Noss & 2 Ors [2001] NSWSC 1018

NAB Group Ltd v Noss & 2 Ors [2001] NSWSC 1018

The third defendant acted expeditiously once he became aware of the judgment, gave a satisfactory explanation for the delay, and had an arguable defence based on alleged representations and the relationship between the guarantee and mortgage. Although the defence was weak, the interests of justice favoured allowing him to defend. The writ of possession was also set aside because it was arguable that the mortgage was provided in support of the guarantee and that the plaintiff could exercise mortgage rights only if it could exercise rights under the guarantee, so it was not sufficiently clear that the mortgagee-possession rule in Horrobin and Lord defeated the proposed defence at this stage.

Jurisdiction
Australia
Judgment Date
13 November 2001
Procedural Posture
Common Law Division Proceedings Concerning Default Judgment and Possession of Mortgaged Land / Third Defendant's Amended Notice of Motion to Set Aside Default Judgment and Stay the Writ of Possession
Outcome
Default judgment entered on 14 June 2001 insofar as it affected the third defendant was set aside; the writ of possession was set aside; the third defendant was ordered to file and serve a defence within 14 days and pay the plaintiff's costs of the motion.
Legal Topics
['setting Aside Default Judgment' 'writ of Possession' "mortgagee's Right to Possession" 'guarantees and Indemnities' 'alleged Misrepresentation' 'equitable Set Off']
['civil Procedure' 'property Law' 'banking and Finance' 'equity' 'trade Practices'] ['setting Aside Default Judgment' 'writ of Possession' "mortgagee's Right to Possession" 'guarantees and Indemnities' 'alleged Misrepresentation' 'equitable Set Off']

Case Brief

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Procedural Posture

Common Law Division Proceedings Concerning Default Judgment and Possession of Mortgaged Land / Third Defendant's Amended Notice of Motion to Set Aside Default Judgment and Stay the Writ of Possession

Legal Issues

  1. 1 ['Whether the default judgment entered on 14 June 2001 against the third defendant should be set aside under Part 40 r 9(2) of the Supreme Court Rules.' 'Whether the third defendant gave a satisfactory explanation for delay in filing a defence and showed an arguable or bona fide defence.' "Whether the plaintiff should retain the order for possession and writ of possession notwithstanding the third defendant's proposed defence and cross-claim." "Whether the alleged representations about the third defendant's ranking as guarantor and the relationship between the mortgage and guarantee made the plaintiff's entitlement to possession arguable."]

Ratio Decidendi

The third defendant acted expeditiously once he became aware of the judgment, gave a satisfactory explanation for the delay, and had an arguable defence based on alleged representations and the relationship between the guarantee and mortgage. Although the defence was weak, the interests of justice favoured allowing him to defend. The writ of possession was also set aside because it was arguable that the mortgage was provided in support of the guarantee and that the plaintiff could exercise mortgage rights only if it could exercise rights under the guarantee, so it was not sufficiently clear that the mortgagee-possession rule in Horrobin and Lord defeated the proposed defence at this stage.

Court Disposition

Default judgment entered on 14 June 2001 insofar as it affected the third defendant was set aside; the writ of possession was set aside; the third defendant was ordered to file and serve a defence within 14 days and pay the plaintiff's costs of the motion.

Orders

  • ['The default judgment entered on 14 June 2001 insofar as it effects the third defendant is set aside.' 'The writ of possession is set aside.' 'The third defendant is to file and serve his defence within 14 days.' "The third defendant is to pay the plaintiff's costs of the motion."]