National Australia Bank Ltd v McCann (No. 2) [2010] NSWSC 1032

National Australia Bank Ltd v McCann (No. 2) [2010] NSWSC 1032

The third application to set aside the default judgment was dismissed because it was an abuse of process: the Defendant again failed to lead evidence addressing deficiencies expressly identified in the earlier judgment, and the further proposed Defence and evidence did not materially differ from those already rejected. In any event, the Defendant still did not show a defence on the merits to the Bank's claims on the facilities, and her gross delay remained unexplained. The request for pro bono assistance was also refused because she had previously had legal representation and the application was a third attempt after findings that no defence on the merits and no adequate explanation for...

Jurisdiction
Australia
Judgment Date
15 September 2010
Procedural Posture
Notice of Motion to Set Aside Default Judgment and for Pro Bono Assistance; Stay of Execution of Writ of Possession / Third Application by the Defendant to Set Aside a Default Judgment Obtained on 24 November 2009
Outcome
The Defendant's Notice of Motion filed 30 July 2010 was dismissed; execution of the Writ of Possession was stayed until after 30 October 2010; the Defendant was ordered to pay the Plaintiff's costs.
Legal Topics
['setting Aside Default Judgment' 'abuse of Process' 'defence on the Merits' 'delay' 'writ of Possession' 'pro Bono Assistance']
['civil Procedure' 'banking and Finance' 'mortgage Possession'] ['setting Aside Default Judgment' 'abuse of Process' 'defence on the Merits' 'delay' 'writ of Possession' 'pro Bono Assistance']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside Default Judgment and for Pro Bono Assistance; Stay of Execution of Writ of Possession / Third Application by the Defendant to Set Aside a Default Judgment Obtained on 24 November 2009

Legal Issues

  1. 1 ["Whether the Defendant's third application to set aside the default judgment was an abuse of process." "Whether the further evidence showed a defence on the merits to the Bank's claims on the facilities." 'Whether delay in bringing and supporting the applications justified refusal of relief.' 'Whether the Court should appoint pro bono legal assistance under Part 7 rule 36 UCPR.' 'Whether execution of the Writ of Possession should be stayed to allow the Defendant time to vacate the property.']

Ratio Decidendi

The third application to set aside the default judgment was dismissed because it was an abuse of process: the Defendant again failed to lead evidence addressing deficiencies expressly identified in the earlier judgment, and the further proposed Defence and evidence did not materially differ from those already rejected. In any event, the Defendant still did not show a defence on the merits to the Bank's claims on the facilities, and her gross delay remained unexplained. The request for pro bono assistance was also refused because she had previously had legal representation and the application was a third attempt after findings that no defence on the merits and no adequate explanation for...

Court Disposition

The Defendant's Notice of Motion filed 30 July 2010 was dismissed; execution of the Writ of Possession was stayed until after 30 October 2010; the Defendant was ordered to pay the Plaintiff's costs.

Orders

  • ["The Defendant's Notice of Motion filed 30 July 2010 is dismissed." 'Execution of the Writ of Possession is stayed until after 30 October 2010.' "The Defendant is to pay the Plaintiff's costs."]