HESTER v COMMONWEALTH BANK OF AUSTRALIA [2023] NSWCA 70

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: HESTER v COMMONWEALTH BANK OF AUSTRALIA [2023] NSWCA 70 Hearing dates: 03 April 2023 Date of orders: 03 April 2023 Decision date: 03 April 2023 Before: Brereton JA Decision: Notice of Motion dismissed with costs. Catchwords: MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Possession APPEALS – Procedure – Injunction pending appeal – Application for leave to appeal – Application for stay of judgment treated as one for writ of restitution pending the hearing of application for leave to appeal and injunction to restrain exercise by bank of powers of sale – Where default judgment granted in 2019 in default of defence – Failure satisfactorily to explain three year delay in filing leave to appeal – Availability of alternative remedy in Common Law Division, in itself, fatal to an application for leave to appeal CIVIL PROCEDURE – Default judgment – Setting aside – Application further considered as an application to set aside default judgment – Insufficient explanation for failure to file defence – Insufficient explanation for delay in application to have judgment set aside – No arguable defence on the merits Legislation Cited: UCPR r 39.2 Cases Cited: Westpac Banking Corporation v Mason [2011] NSWSC 1241 Category: Principal judgment Parties: John Hester (Applicant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: Mr J Hester, in person (Applicant) Mr M A Collins (Respondent)

Solicitors: Dentons Australia (Respondent) File Number(s): 2023/48361 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 1842 Date of Decision: 19 December 2019 Before: Lonergan J File Number(s): 2019/96916