Cusack v. Permanent Trustee Company Ltd. [2004] NSWCA 143

New South Wales Court of Appeal

CITATION : Cusack v. Permanent Trustee Company Ltd. [2004] NSWCA 143 HEARING DATE(S) : 3 May 2004 JUDGMENT DATE : 3 May 2004

JUDGMENT OF : Mason P at 11; Hodgson JA at 1 DECISION : Leave to appeal dismissed with costs.; Ordered that the claimant have leave to resinstate the application for leave to appeal by notice of motion filed within 28 days from today, if necessary.

CATCHWORDS : PRACTICE - Appeals - Refusal of stay - No purpose in appeal - Default judgment - Remedy of application in division where order made. PARTIES : Gregory Hayden Cusack - claimant Permanent Trustee Company Limited - opponent FILE NUMBER(S) : CA 40685/03 COUNSEL : The claimant did not appear but was represented by a family friend, Mr. Kehoe Mr. Stefano for opponent SOLICITORS : Hunt & Hunt, Sydney for opponent

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC10688/02 FILE NUMBER(S) : LOWER COURT O'Keefe J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40685/03

MASONP HODGSON JA

Monday 3 May 2004 CUSACK V. PERMANENT TRUSTEE COMPANY LTD. Judgment 1 HODGSON JA: There is before the Court an application for leave to appeal from a decision of Mr Justice O'Keefe of 5 June 2003. The claimant is not present in Court, because he has needed to go to Queensland due to a death in the family. Mr Kehoe is present in Court on his behalf, and has sought an adjournment. 2 The Court would have been prepared to grant an adjournment, had it considered that any useful purpose could be served in doing so. However, for reasons I will give, it is our view that it would not serve any useful purpose to grant an adjournment, and the Court does propose to dismiss the application for leave, but at the same time to give Mr Cusack an opportunity to reinstate the application if, notwithstanding the reasons I am about to give, he considers that there might be some useful purpose in doing so. 3 The Court proposes to take this course because it seems undesirable that costs should be wasted, as they would I think be wasted, if the Court were now to grant an adjournment. 4 The application arises in relation to a mortgage that was entered into between the claimant and the opponent. The opponent claimed that there had been default under the mortgage and commenced proceedings seeking a money judgment and also possession of the mortgaged property, and a default judgment was signed by the opponent in circumstances where it appears that the claimant had put on an appearance in the case but had not put on a defence. 5 The claimant apparently considers that the opponent was not justified in entering that default judgment. However, no application was made in the Common Law Division to set aside that default judgment. The opponent proceeded to take steps to sell the mortgaged property. 6 It appears that shortly before the execution of the order for possession, there was a communication to the Court which led Mr. Justice O'Keefe on 5 June 2003 to consider whether there should be a stay of the default judgment. On that occasion the claimant was unable to attend the Court but Mr Justice O'Keefe considered whether a stay should be granted and declined to grant a stay. The mortgaged property was subsequently sold. 7 As I have said, the application for leave to appeal is an application for leave to appeal from Mr. Justice O'Keefe's refusal of a stay. For this Court now to overturn the refusal of a stay would serve no purpose whatsoever. The property has been sold, and there is just no matter to which the question whether a stay should or should not be granted has any relevance. 8 If Mr Cusack has any remedy at all at this time, it would be a remedy of seeking to have set aside in the Common Law Division the default judgment that was signed in his absence. 9 The rules of Court provide that, when an order or judgment is made in the absence of a party, that party can apply, in the division where the order is made, to have that judgment set aside. I am not in a position to express any view as to whether Mr Cusack would have now any chance of having the default judgment set aside by an application in the division, but in my opinion it is clear that that is the only remedy in relation to the matter that is available to him at this time. 10 For those reasons, in my opinion this application for leave to appeal should be dismissed with costs. However, in the circumstances that I have outlined, I would propose a further order that Mr Cusack have leave to reinstate the application for leave to appeal by a notice of motion filed within 28 days from today. 11 MASON P: I agree and the orders of the Court will be as indicated. **********