GREATER BUILDING SOCIETY LIMITED V ENGEL [2009] NSWSC 727

GREATER BUILDING SOCIETY LIMITED V ENGEL [2009] NSWSC 727

The Court set aside the judgments and writs of possession against Mr Engel because his evidence, although contested by the Plaintiff's acknowledgement and checklist documents, was sufficient to disclose a fairly arguable defence of unconscionability, and because his delay in filing a defence was sufficiently explained by the need for his solicitor to obtain documents and detailed instructions before being satisfied that the defence had reasonable prospects of success.

Jurisdiction
Australia
Judgment Date
31 July 2009
Procedural Posture
Mortgage and Debt Proceedings; Application by Mr Engel to Set Aside Default Judgments and Writs of Possession / Notice of Motion After Default Judgment
Outcome
Application granted; judgments and writs of possession against Mr Engel set aside; proceedings consolidated; costs reserved.
Legal Topics
['setting Aside Default Judgment' 'writs of Possession' 'mortgage Enforcement' 'unconscionable Conduct' 'garcia Principle' 'extension of Time to File Defence' 'consolidation of Proceedings']
['civil Procedure' 'banking and Finance' 'real Property' 'equity'] ['setting Aside Default Judgment' 'writs of Possession' 'mortgage Enforcement' 'unconscionable Conduct' 'garcia Principle' 'extension of Time to File Defence' 'consolidation of Proceedings']

Case Brief

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Procedural Posture

Mortgage and Debt Proceedings; Application by Mr Engel to Set Aside Default Judgments and Writs of Possession / Notice of Motion After Default Judgment

Legal Issues

  1. 1 ['Whether the default judgments and writs of possession entered against Mr Engel should be set aside.' "Whether Mr Engel had a fairly arguable defence based on unconscionability, the Garcia principle, and s51AC of the Trade Practices Act 1974 (C'th)." 'Whether there was a sufficient explanation for the delay in filing a defence.' 'Whether any conditions should be imposed on setting aside the judgments.' 'Whether the three proceedings should be consolidated.']

Ratio Decidendi

The Court set aside the judgments and writs of possession against Mr Engel because his evidence, although contested by the Plaintiff's acknowledgement and checklist documents, was sufficient to disclose a fairly arguable defence of unconscionability, and because his delay in filing a defence was sufficiently explained by the need for his solicitor to obtain documents and detailed instructions before being satisfied that the defence had reasonable prospects of success.

Court Disposition

Application granted; judgments and writs of possession against Mr Engel set aside; proceedings consolidated; costs reserved.

Orders

  • ['That the judgment entered against Mr Engel be set aside.' 'That the leave to issue writ(s) of possession and the writ(s) of possession issued in the proceedings be set aside.' 'That each of the proceedings 14051/2008, 14052/2008 and 14445/2008 be consolidated with the others.' 'That Mr Engel have leave to file, on...