Secured Lending 1 Pty Ltd v Luvnlife Consulting Pty Ltd [2020] NSWSC 637

Secured Lending 1 Pty Ltd v Luvnlife Consulting Pty Ltd [2020] NSWSC 637

The dismissal orders should be set aside because the absence of steps for over nine months was sufficiently explained by the parties' attempt to resolve the matter outside the court system, and requiring the plaintiffs to commence fresh possession proceedings would impose further cost and delay contrary to the efficient conduct of civil proceedings. However, substantive possession judgment should not be entered on the ex parte application because fairness required that the defendant be given a reasonable but tight opportunity to contest judgment, particularly in light of its absence and the attempted request for an adjournment.

Jurisdiction
Australia
Judgment Date
27 May 2020
Procedural Posture
Claim for Possession of Real Property Arising From Mortgage Default / Plaintiffs' Ex Parte Notice of Motion to Set Aside Dismissal of Proceedings and Seek Judgment for Possession
Outcome
Orders dismissing the proceedings were set aside; the matter was listed for further directions; judgment for possession was not entered on the ex parte application.
Legal Topics
['possession of Land' 'mortgage Default' 'dismissal for Want of Prosecution' 'setting Aside Orders' 'ex Parte Application' 'consent Judgment']
['real Property' 'civil Procedure'] ['possession of Land' 'mortgage Default' 'dismissal for Want of Prosecution' 'setting Aside Orders' 'ex Parte Application' 'consent Judgment']

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Procedural Posture

Claim for Possession of Real Property Arising From Mortgage Default / Plaintiffs' Ex Parte Notice of Motion to Set Aside Dismissal of Proceedings and Seek Judgment for Possession

Legal Issues

  1. 1 ['Whether orders made on 6 February 2020 dismissing the proceedings pursuant to r 12.8(7) of the Uniform Civil Procedure Rules 2005 (NSW) should be set aside.' "Whether judgment for possession of the land should be entered for the plaintiffs in the defendant's absence on the basis of a signed consent judgment."]

Ratio Decidendi

The dismissal orders should be set aside because the absence of steps for over nine months was sufficiently explained by the parties' attempt to resolve the matter outside the court system, and requiring the plaintiffs to commence fresh possession proceedings would impose further cost and delay contrary to the efficient conduct of civil proceedings. However, substantive possession judgment should not be entered on the ex parte application because fairness required that the defendant be given a reasonable but tight opportunity to contest judgment, particularly in light of its absence and the attempted request for an adjournment.

Court Disposition

Orders dismissing the proceedings were set aside; the matter was listed for further directions; judgment for possession was not entered on the ex parte application.

Orders

  • ['Set aside the orders made on 6 February 2020 dismissing the proceedings.' 'List the matter for further directions before the Common Law Registrar on Monday 1 June 2020.' 'The plaintiff to bear its own costs of the notice of motion.']