GKQ Mortgages Pty Ltd v Maureen Pedersen [2010] NSWSC 230

GKQ Mortgages Pty Ltd v Maureen Pedersen [2010] NSWSC 230

The defendant had a satisfactory explanation for delay in defending, and there was a bona fide defence and triable issue raised under the Contracts Review Act, the Fair Trading Act, and the equitable doctrine of unconscionable conduct. Setting aside the default judgment was not futile. Prejudicial balance favoured the defendant. Default judgment was set aside; costs reserved due to plaintiff's extra curial conduct and interlocutory nature of proceedings.

Jurisdiction
Australia
Judgment Date
26 March 2010
Procedural Posture
Application to Set Aside Default Judgment / Interlocutory Hearing
Outcome
Default judgment set aside; defendant given leave to file defence and cross-claim; costs reserved; sale proceeds to be paid into court; proceedings stood over; defendant's notice of motion otherwise dismissed.
Legal Topics
['setting Aside Default Judgment' 'contracts Review Act' 'fair Trading Act' 'unconscionable Conduct' 'mortgages' 'possession Proceedings']
['civil Procedure'] ['setting Aside Default Judgment' 'contracts Review Act' 'fair Trading Act' 'unconscionable Conduct' 'mortgages' 'possession Proceedings']

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Procedural Posture

Application to Set Aside Default Judgment / Interlocutory Hearing

Legal Issues

  1. 1 ['Whether default judgment should be set aside' 'Whether there is a bona fide defence and triable issue under the Contracts Review Act and/or Fair Trading Act' 'Consideration of equitable doctrine of unconscionable conduct' 'Whether the application is futile' 'Costs of application to set aside judgment' "Extra curial conduct by mortgagee entering the defendant's property"]

Ratio Decidendi

The defendant had a satisfactory explanation for delay in defending, and there was a bona fide defence and triable issue raised under the Contracts Review Act, the Fair Trading Act, and the equitable doctrine of unconscionable conduct. Setting aside the default judgment was not futile. Prejudicial balance favoured the defendant. Default judgment was set aside; costs reserved due to plaintiff's extra curial conduct and interlocutory nature of proceedings.

Court Disposition

Default judgment set aside; defendant given leave to file defence and cross-claim; costs reserved; sale proceeds to be paid into court; proceedings stood over; defendant's notice of motion otherwise dismissed.

Orders

  • ['Default judgment entered by plaintiff set aside.' 'Defendant has leave to file and serve defence and cross-claim within 14 days.' 'Proceedings stood over for directions before Registrar.' 'Plaintiff to pay net proceeds of property sale (after expenses) into Court.' "Defendant's notice of motion filed 22 March 2010...