Commonwealth Bank of Australia v Joseph Usalj & Ors [2011] NSWSC 63

Commonwealth Bank of Australia v Joseph Usalj & Ors [2011] NSWSC 63

Although the application required great caution because the applicants had notice of and appeared at the hearing before withdrawing after the adjournment was refused, the contemporaneous records showed the critical role of the sixth defendant in dealing with solicitors and trying to obtain funding, and the first and second defendants' overseas absence was important. Despite concerns that the applicants' evidence came close to toying with the truth, they satisfied the Court that they were entitled to the relief sought.

Jurisdiction
Australia
Judgment Date
17 February 2011
Procedural Posture
Application to Set Aside Judgment / Notice of Motion Under UCPR Rule 36.16(2)(b) to Set Aside Judgment Entered on 23 September 2010
Outcome
Judgment to be set aside
Legal Topics
['setting Aside Judgment' 'absence of Party' 'adjournment Refusal' 'overriding Purpose' 'commercial List Procedure']
['civil Procedure'] ['setting Aside Judgment' 'absence of Party' 'adjournment Refusal' 'overriding Purpose' 'commercial List Procedure']

Case Brief

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Procedural Posture

Application to Set Aside Judgment / Notice of Motion Under UCPR Rule 36.16(2)(b) to Set Aside Judgment Entered on 23 September 2010

Legal Issues

  1. 1 ['Whether the judgment and final orders entered on 23 September 2010 should be set aside under UCPR Rule 36.16(2)(b).' 'Whether the applicants had given a sufficient and candid explanation for their absence when judgment was entered after their adjournment application was refused.' 'How the discretion under UCPR Rule 36.16 should be exercised in light of ss 56 and 58 of the Civil Procedure Act and the principles in Aon.']

Ratio Decidendi

Although the application required great caution because the applicants had notice of and appeared at the hearing before withdrawing after the adjournment was refused, the contemporaneous records showed the critical role of the sixth defendant in dealing with solicitors and trying to obtain funding, and the first and second defendants' overseas absence was important. Despite concerns that the applicants' evidence came close to toying with the truth, they satisfied the Court that they were entitled to the relief sought.

Court Disposition

Judgment to be set aside

Orders

  • ['Parties to bring in short minutes of order.']