Saunders v RHG Mortgage Corporation Limited [2016] NSWCA 313

Saunders v RHG Mortgage Corporation Limited [2016] NSWCA 313

Because the parties had already been allocated a concurrent hearing date, the applicant had been evicted, the respondent was restrained from selling the property, the stay was conditioned on regular payments and expedition, and a question arose concerning the National Credit Code, the matters raised warranted the appeal remaining in the Court of Appeal rather than being remitted to the Common Law Division.

Jurisdiction
Australia
Judgment Date
16 November 2016
Procedural Posture
Summons Seeking Leave to Appeal From an Interlocutory Order Dismissing a Notice of Motion to Set Aside Default Judgment / Court of Appeal in Chambers; Ruling on Whether to Remit the Matter to the Common Law Division
Outcome
Decline to remit the matter.
Legal Topics
['appeal From Judgment of Associate Judge' 'irregular Commencement of Appeal' 'remittal to Common Law Division' 'default Judgment' 'order for Possession']
['practice and Procedure' 'appeals'] ['appeal From Judgment of Associate Judge' 'irregular Commencement of Appeal' 'remittal to Common Law Division' 'default Judgment' 'order for Possession']

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Procedural Posture

Summons Seeking Leave to Appeal From an Interlocutory Order Dismissing a Notice of Motion to Set Aside Default Judgment / Court of Appeal in Chambers; Ruling on Whether to Remit the Matter to the Common Law Division

Legal Issues

  1. 1 ['Whether the Court should exercise its power under Supreme Court Act 1970 (NSW), s 51(2)(b) to remit the matter to the Common Law Division.' 'Whether an appeal from an Associate Judge, although competent, was irregularly commenced in the Court of Appeal.' 'Whether the circumstances warranted the matter remaining in the Court of Appeal.']

Ratio Decidendi

Because the parties had already been allocated a concurrent hearing date, the applicant had been evicted, the respondent was restrained from selling the property, the stay was conditioned on regular payments and expedition, and a question arose concerning the National Credit Code, the matters raised warranted the appeal remaining in the Court of Appeal rather than being remitted to the Common Law Division.

Court Disposition

Decline to remit the matter.

Orders

  • ['Decline to remit the matter to the Common Law Division pursuant to s 51(2)(b).' 'The hearing date of 30 November 2016 is confirmed.']