ANZ Banking Group Limited v Masood Falamaki [2002] NSWSC 847

New South Wales Supreme Court

CITATION : ANZ Banking Group Limited v Masood Falamaki [2002] NSWSC 847 FILE NUMBER(S) : SC 13124/00 2 September 2002 HEARING DATE(S) : 3 September 2002 4 September 220 JUDGMENT DATE : 4 September 2002

PARTIES : ANZ Banking Group Masood Falamaki JUDGMENT OF : Dowd J at 1

COUNSEL : Plaintiff: Mr P Newton barrister Defendant: In person SOLICITORS : Plaintiff: Mr R O'Hagan, Kemp Strang Lawyers CATCHWORDS : Application to set aside default judgment - Excuse for delay - No triable defence or cross action LEGISLATION CITED : Jury Act 1977 (NSW) DECISION : Application refused; The applicant to pay the respondent's costs; That the judgment be stayed until 5:00 pm on 20 September 2002; That in the event of the applicant succeeding in the High Court special leave application, that he have liberty to apply, on two days notice to either the Duty Judge or Dowd J to extend that stay

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

Wednesday 4 September 2002

13124/00 ANZ Banking Group Limited v Masood Falamaki

JUDGMENT 1 DOWD J: This is an application by Dr Falamaki to set aside a judgment obtained by the Australia and New Zealand Banking Group Limited ("the Bank") for possession of property in the name of Dr Falamaki and for a certain debt. 2 Before dealing with the substantive matter, Dr Falamaki has submitted to the court that this application should be heard before a jury and as such he relies on, firstly, the Magna Carta, the Petition of Right and the Common Law Procedure Act No 49 1900. 3 The entitlement to a jury trial is governed by the Jury Act 1977 (NSW) which repealed the previous Acts relating to juries. That Act entitles the matter to be heard by a jury in certain circumstances after the pleadings in the proceedings are closed. This is a procedural matter for the setting aside of a judgment. Where the judgment has been entered on default, there is no entitlement under the Jury Act for a jury to hear the matter and at the beginning of this application, no such request was made.