National Australia Bank Ltd v Priestley [2012] NSWSC 1611

National Australia Bank Ltd v Priestley [2012] NSWSC 1611

The defendants had not shown an arguable defence to the National Australia Bank's claim for possession. Even assuming non-compliance with the Code of Banking Practice could be established, the matters advanced were not shown to answer the bank's legal entitlement to possession and, at their highest, might only found a damages claim. Given this was the defendants' seventh attempt to formulate a defence, it was not in the interests of justice to grant the stay or other relief sought.

Jurisdiction
Australia
Judgment Date
10 December 2012
Procedural Posture
Application for Urgent Relief Seeking a Stay of Execution of Writs of Possession in Possession Proceedings / Notice of Motion Filed 19 November 2012 Heard After Default Judgment and Issue of Writs of Possession
Outcome
Notice of Motion dismissed; defendants ordered to pay the plaintiff's costs.
Legal Topics
['stay of Execution of Writs of Possession' 'leave to File Amended Defence' 'default Judgment' 'code of Banking Practice' 'farm Debt Mediation Act 1994' 'arguable Defence' 'interests of Justice']
['property' 'civil Procedure' 'banking and Finance'] ['stay of Execution of Writs of Possession' 'leave to File Amended Defence' 'default Judgment' 'code of Banking Practice' 'farm Debt Mediation Act 1994' 'arguable Defence' 'interests of Justice']

Case Brief

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Procedural Posture

Application for Urgent Relief Seeking a Stay of Execution of Writs of Possession in Possession Proceedings / Notice of Motion Filed 19 November 2012 Heard After Default Judgment and Issue of Writs of Possession

Legal Issues

  1. 1 ["Whether execution of writs of possession over the defendants' rural properties should be stayed." "Whether the defendants' proposed reliance on alleged non-compliance by the National Australia Bank with the Code of Banking Practice disclosed an arguable defence to the plaintiff's claim for possession." 'Whether it was in the interests of justice to grant relief where the defendants had made repeated prior attempts to formulate a defence.']

Ratio Decidendi

The defendants had not shown an arguable defence to the National Australia Bank's claim for possession. Even assuming non-compliance with the Code of Banking Practice could be established, the matters advanced were not shown to answer the bank's legal entitlement to possession and, at their highest, might only found a damages claim. Given this was the defendants' seventh attempt to formulate a defence, it was not in the interests of justice to grant the stay or other relief sought.

Court Disposition

Notice of Motion dismissed; defendants ordered to pay the plaintiff's costs.

Orders

  • ['The Notice of Motion filed 19 November 2012 is dismissed.' "The defendants are to pay the plaintiff's costs."]