Commonwealth Bank of Australia v Tarrant & Hawkins [2012] NSWSC 165

Commonwealth Bank of Australia v Tarrant & Hawkins [2012] NSWSC 165

The stay was refused because the First Defendant provided little evidence or explanation as to how setting aside the sequestration order would affect these proceedings, failed to explain her non-compliance with orders for filing an amended defence and evidence, and the proceedings had already been on foot for about...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 March 2012
Procedural Posture
Possession Proceedings / Interlocutory Application for Stay and Plaintiff's Motion for Judgment for Possession or Strike Out
Outcome
First Defendant's application for a stay refused; proceedings ordered to be heard on a final basis on a date to be fixed.
Legal Topics
['possession Proceedings' 'mortgage Default' 'stay of Proceedings' 'sequestration Order' 'summary Judgment' 'contracts Review Act Defence']
['civil Procedure' 'property Law' 'bankruptcy' 'contract Law'] ['possession Proceedings' 'mortgage Default' 'stay of Proceedings' 'sequestration Order' 'summary Judgment' 'contracts Review Act Defence']

Source-derived case record

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Procedural Posture

Possession Proceedings / Interlocutory Application for Stay and Plaintiff's Motion for Judgment for Possession or Strike Out

Legal Issues

  1. 1 ["Whether the First Defendant's application for a stay of the proceedings pending determination of her appeal against a sequestration order should be granted." "Whether the plaintiff's motion for judgment for possession or summary judgment should proceed, or whether the matter should be heard on a final basis." "What effect, if any, the First Defendant's bankruptcy and proposed appeal against the sequestration order had on her ability to defend the possession proceedings."]

Ratio Decidendi

The stay was refused because the First Defendant provided little evidence or explanation as to how setting aside the sequestration order would affect these proceedings, failed to explain her non-compliance with orders for filing an amended defence and evidence, and the proceedings had already been on foot for about 18 months with no payments made since default. A further summary judgment motion was likely to impede the just, quick and cheap resolution of the real issues, so the proceedings should be heard on a final basis.

Court Disposition

First Defendant's application for a stay refused; proceedings ordered to be heard on a final basis on a date to be fixed.

Orders

  • ["Refuse the First Defendant's application for a stay." 'Order that the proceedings be heard on a final basis on a date to be fixed.']