National Australia Bank Limited v Loccisano [2014] NSWSC 1347

National Australia Bank Limited v Loccisano [2014] NSWSC 1347

The second, third and fourth defendants had an arguable case for relief under the Contracts Review Act, 1980 or unconscionability because the bank appeared to have relied on the first defendant to obtain their signatures without ensuring they understood the liabilities, and any delay or default did not justify denying them the opportunity to have the real issues determined; accordingly the judgments against them were set aside, writs of possession were set aside, and proceedings on the judgment against the first defendant were stayed because his liability was co-joint with theirs.

Jurisdiction
Australia
Judgment Date
12 September 2014
Procedural Posture
Application to Set Aside Default Judgment for Possession in Respect of Mortgaged Properties / Procedural Ruling on Default Judgment and Writs of Possession
Outcome
Default judgments against the second, third and fourth defendants were set aside; proceedings on the judgment against the first defendant were stayed; writs of possession were set aside; procedural directions were made.
Legal Topics
['default Judgment for Possession' 'writs of Possession' 'contracts Review Act 1980 (nsw)' 'unconscionability' 'guarantees' 'mortgaged Properties']
['real Property' 'mortgages' 'equity' 'civil Procedure'] ['default Judgment for Possession' 'writs of Possession' 'contracts Review Act 1980 (nsw)' 'unconscionability' 'guarantees' 'mortgaged Properties']

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Procedural Posture

Application to Set Aside Default Judgment for Possession in Respect of Mortgaged Properties / Procedural Ruling on Default Judgment and Writs of Possession

Legal Issues

  1. 1 ['Whether default judgments for possession should be set aside against the second, third and fourth defendants.' 'Whether the second, third and fourth defendants had an arguable case for relief under the Contracts Review Act, 1980 or the equitable doctrine of unconscionability.' 'Whether any delay or default by the defendants should prevent them from having the real issues determined.' 'What consequential directions should be made for defences and evidence.']

Ratio Decidendi

The second, third and fourth defendants had an arguable case for relief under the Contracts Review Act, 1980 or unconscionability because the bank appeared to have relied on the first defendant to obtain their signatures without ensuring they understood the liabilities, and any delay or default did not justify denying them the opportunity to have the real issues determined; accordingly the judgments against them were set aside, writs of possession were set aside, and proceedings on the judgment against the first defendant were stayed because his liability was co-joint with theirs.

Court Disposition

Default judgments against the second, third and fourth defendants were set aside; proceedings on the judgment against the first defendant were stayed; writs of possession were set aside; procedural directions were made.

Orders

  • ['Set aside the judgments against the second, third and fourth defendants.' 'Stay proceedings on the judgment against the first defendant.' 'Set aside the writs of possession which have issued.' 'Direct the plaintiff to serve on the solicitors for the defendants within 14 days a comprehensive list of the documents...