Kaji Australia Pty Ltd v Glover [2016] NSWSC 679

Kaji Australia Pty Ltd v Glover [2016] NSWSC 679

The Supreme Court default judgment for possession and writ of possession were founded on the District Court default judgment pleaded in the Supreme Court statement of claim. Because the District Court judgment had been set aside as irregular, there was no existing judgment that a sum was due and owing under the loan agreement and no basis to maintain the Supreme Court default judgment or writ of possession. The plaintiffs' legal costs and hardship did not justify refusing relief because they resulted from the incorrect and costly procedure adopted by their solicitor.

Jurisdiction
Australia
Judgment Date
01 June 2016
Procedural Posture
Civil Possession Proceedings Arising From a Mortgage Loan / Defendant's Amended Notice of Motion to Set Aside Default Judgment for Possession and Writ of Possession
Outcome
Default judgment for possession and the writ of possession were set aside; procedural orders were made to regularise the pleadings and costs were reserved.
Legal Topics
['default Judgment' 'setting Aside Judgment' 'irregularity' 'writ of Possession' 'pleadings']
['civil Procedure' 'mortgage and Possession Proceedings'] ['default Judgment' 'setting Aside Judgment' 'irregularity' 'writ of Possession' 'pleadings']

Case Brief

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Procedural Posture

Civil Possession Proceedings Arising From a Mortgage Loan / Defendant's Amended Notice of Motion to Set Aside Default Judgment for Possession and Writ of Possession

Legal Issues

  1. 1 ['Whether the default judgment for possession entered by the Supreme Court should be set aside as irregular, illegal or against good faith under Uniform Civil Procedure Rules 2005 (NSW) r 36.15.' 'Whether the writ of possession issued by the Supreme Court should remain in force after the District Court default judgment on which the Supreme Court pleading relied was set aside.' "Whether the plaintiffs' legal costs and hardship warranted refusing to set aside the Supreme Court default judgment and writ of possession."]

Ratio Decidendi

The Supreme Court default judgment for possession and writ of possession were founded on the District Court default judgment pleaded in the Supreme Court statement of claim. Because the District Court judgment had been set aside as irregular, there was no existing judgment that a sum was due and owing under the loan agreement and no basis to maintain the Supreme Court default judgment or writ of possession. The plaintiffs' legal costs and hardship did not justify refusing relief because they resulted from the incorrect and costly procedure adopted by their solicitor.

Court Disposition

Default judgment for possession and the writ of possession were set aside; procedural orders were made to regularise the pleadings and costs were reserved.

Orders

  • ['The plaintiffs are to file and serve an amended statement of claim in the Supreme Court proceedings by 5.00 pm on 15 June 2016.' 'Leave is granted to the defendant to file and serve a defence and cross claim by 5.00 pm on 29 June 2016.' 'These proceedings are listed for directions at 9.00 am on 13 July 2016 before...