National Australia Bank v Salubre [2024] NSWSC 1288

National Australia Bank v Salubre [2024] NSWSC 1288

The defendant's application to stay enforcement and set aside default judgment was dismissed because prior applications had resolved the issue, there was no persuasive evidence of lack of service or any defence to possession, no relevant set-off arose from Equity proceedings, and no fresh evidence justified rehearing; the Bank was entitled to possession and enforcement by the Sheriff.

Parties
Plaintiff/respondent: National Australia Bank; Defendant/applicant: Mary Rose Salubre
Jurisdiction
Australia
Judgment Date
18 October 2024
Procedural Posture
Civil / Interlocutory Application Dismissed; Post Default Judgment Enforcement
Outcome
Notice of Motion dismissed, costs awarded to plaintiff/respondent.
Legal Topics
Default Judgment, Setting Aside Judgment, Stay of Execution, Possession of Land, Service of Process, Equitable Set Off
Civil Procedure Property Law Default Judgment Setting Aside Judgment Stay of Execution Possession of Land Service of Process Equitable Set Off

Case Brief

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Parties

National Australia Bank

Plaintiff/respondent

Mary Rose Salubre

Defendant/applicant

Procedural Posture

Civil / Interlocutory Application Dismissed; Post Default Judgment Enforcement

Legal Issues

  1. 1 Whether the default judgment for possession of land should be set aside for lack of personal service
  2. 2 Whether the Sheriff should be restrained from enforcing possession
  3. 3 Whether there is an equitable set-off arising from related proceedings in the Equity Division

Ratio Decidendi

The defendant's application to stay enforcement and set aside default judgment was dismissed because prior applications had resolved the issue, there was no persuasive evidence of lack of service or any defence to possession, no relevant set-off arose from Equity proceedings, and no fresh evidence justified rehearing; the Bank was entitled to possession and enforcement by the Sheriff.

Court Disposition

Notice of Motion dismissed, costs awarded to plaintiff/respondent.

Orders

  • Notice of Motion filed 24 July 2024 dismissed
  • Defendant/applicant to pay the costs of the plaintiff/respondent of the Notice of Motion