GE Commercial Finance Australia Limited v Lynette Meredith & Anor [2009] NSWSC 327

GE Commercial Finance Australia Limited v Lynette Meredith & Anor [2009] NSWSC 327

The Court has power under UCPR r 36.16(2)(b) to set aside the orders as they were made in the absence of the defendant, notwithstanding that the defendant was present at commencement but withdrew after refusal of adjournment. The merits of the cross-claim justified setting aside the judgment, and discretionary factors, including the explanation for absence and fairness, supported the orders.

Jurisdiction
Australia
Judgment Date
29 April 2009
Procedural Posture
Notice of Motion to Set Aside Judgment / Application to Set Aside Final Orders
Outcome
Orders setting aside judgment; costs ordered against applicant; proceedings stood over for directions
Legal Topics
['power to Set Aside Judgment' 'absence of a Party' "mortgagee's Duties in Sale" 'adjournments']
['practice and Procedure'] ['power to Set Aside Judgment' 'absence of a Party' "mortgagee's Duties in Sale" 'adjournments']

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Procedural Posture

Notice of Motion to Set Aside Judgment / Application to Set Aside Final Orders

Legal Issues

  1. 1 ['Whether the Court had power to set aside a judgment made where the defendant withdrew after adjournment was refused' "Whether the judgment was given 'in the absence of a party' under UCPR r 36.16(2)(b)" 'Whether the defendant had a serious case on her cross-claim if the judgment was set aside' 'Discretion to set aside the judgment']

Ratio Decidendi

The Court has power under UCPR r 36.16(2)(b) to set aside the orders as they were made in the absence of the defendant, notwithstanding that the defendant was present at commencement but withdrew after refusal of adjournment. The merits of the cross-claim justified setting aside the judgment, and discretionary factors, including the explanation for absence and fairness, supported the orders.

Court Disposition

Orders setting aside judgment; costs ordered against applicant; proceedings stood over for directions

Orders

  • ['Set aside orders 1, 2, 3, 4, and 5 of the orders entered in proceedings 50168/07 on 7 April 2008.' "Order that the applicant pay the respondents' costs of and occasioned by the vacated hearing fixed for 7 April 2008." "Order that the applicant pay the respondents' costs incurred on the hearing on 27 April 2009 of...