GKQ Mortgages Pty Ltd v Maureen Pedersen [2010] NSWSC 230

New South Wales Supreme Court

CITATION : GKQ Mortgages Pty Ltd v Maureen Pedersen [2010] NSWSC 230

HEARING DATE(S) : 25/03/10

JUDGMENT DATE : 26 March 2010

JUDGMENT OF : Hoeben J

The judgment entered by the plaintiff against the defendant on 25 January 2010 is set aside. The defendant has leave to file and serve within 14 days a defence to the statement of claim and if she so wishes, a cross-claim. DECISION : The proceedings are stood over for directions before the Registrar on 29 April 2010. In accordance with the undertaking to this effect given to the Court on behalf of the plaintiff on 25 March 2010, but nevertheless confirmed by this order, the plaintiff is to pay the net proceeds of sale, after deduction of sale and marketing expenses, of the property contained in Folio Identifier 4/39/758090 and 5/39/758090 and known collectively as 4957 The Oxley Highway, Bendemeer in the State of New South Wales into Court. Otherwise the notice of motion filed on behalf of the defendant on 22 March 2010 is dismissed. The plaintiff's costs of entering default judgment in January 2010 and the costs of the motion filed on behalf of the defendant on 22 March 2010 are reserved for decision by the Judge who ultimately hears the matter.

CATCHWORDS : PRACTICE AND PROCEDURE - Application to set aside default judgment - relevant principles - whether application futile - costs of application to set aside judgment - extra curial conduct by mortgagee to take possession of mortgaged property.

Contracts Review Act 1980 LEGISLATION CITED : Fair Trading Act 1987 Real Property Act 1900 Uniform Civil Procedure Rules 2005