Adelaide Bank v Carnemolla [2008] NSWSC 1117

New South Wales Supreme Court

CITATION : Adelaide Bank v Carnemolla [2008] NSWSC 1117

JUDGMENT DATE : 28 October 2008

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

(1) The judgment entered on 31 July 2008 is set aside in so far as 1/SP63270 is concerned. DECISION : (2) Expedition is granted. (3) Costs are reserved. (4) The matter is listed for a Status Conference on 5 November 2008 before the Registrar at 9.00 am.

CATCHWORDS : SET ASIDE DEFAULT JUDGMENT

Contract Review Act 1980 LEGISLATION CITED : Trade Practices Act 1974 Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

Adelaide Bank Limited (Plaintiff) PARTIES : Sebastian Carnemolla (First Defendant) Lucia Carnemolla (Second Defendant)

FILE NUMBER(S) : SC 15001/2007

COUNSEL : P N Khandar (Plaintiff)

SOLICITORS : MacGillivrays (Plaintiff) Youth & Enterprise Legal Centre (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

ASSOCIATE JUSTICE HARRISON

TUESDAY, 28 OCTOBER 2008

15001/2007 - ADELAIDE BANK LIMITED v SEBASTIAN CARNEMOLLA

JUDGMENT (Set aside judgment) 1 HER HONOUR: By notice of motion filed 3 October 2008 the first and second defendants seek: firstly, a stay of the plaintiff's enforcement proceedings 15001/07 in relation to premises at Lots 1 and 2 SP63720 Smithfield; secondly, that the judgment entered in favour of the plaintiff on 31 July 2008 be set aside pursuant to Rule 36.15 of the Uniform Civil Procedure Rules; thirdly, in the alternative to the second order above, that the judgment entered in favour of the plaintiff on 31 July 2008 be set aside pursuant to the Rule 36.16(1) of the Uniform Civil Procedure Rules; fourthly, in the alternative to the second and third orders above, that the judgment entered in favour of the plaintiff on 31 July 2008 be set aside pursuant to Rule 36.16(2)(a) of the Uniform Civil Procedure Rules; sixthly, that an amended defence be filed within 14 days of the making of these orders. 2 The plaintiff is the Adelaide Bank Limited (Adelaide Bank). The first defendant is Sebastian Carnemolla. The second defendant is Lucia Carnemolla. Mr and Mrs Carnemolla are husband and wife. The plaintiff relied upon the affidavit of Samuel Pearlman dated 3 September 2008 and an affidavit by Mr Carnemolla dated 4 December 2007. The defendants relied upon the affidavits of Lucy Carnemolla dated 1 September 2008 and two by their solicitor Lisa Paraska dated 29 August 2008 and 23 September 2008. 3 On 31 July 2008 I ordered that Mr and Mrs Carnemolla's defence be struck out. I further ordered that Adelaide Bank have possession of the land described in the Schedule to the statement of claim and entered judgment that Mr and Mrs Carnemolla pay to the plaintiff the sum of $987,057.71. 4 Lots 1 and 2 are two units. The family live in Lot 1. The defendants' application to set aside the judgment does not relate to Lot 2. The application and proposed defence relates only to Lot 1. A writ of possession has been issued in relation to Lot 2.