Commonwealth Bank of Australia v Joseph Usalj & Ors [2011] NSWSC 63

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Joseph Usalj & Ors [2011] NSWSC 63 Hearing dates: 15 February 2011 Decision date: 17 February 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: Judgment to be set aside Catchwords: Application to set aside judgment Legislation Cited: Civil Procedure Act Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (plaintiff) Joseph Usalj (first defendant) Filomena Usalj (second defendant) Dominic Jason Usalj (third defendant) Craig Michael Frankland (fourth defendant) Antoinette Usalj (fifth defendant) Simon Usalj (sixth defendant) Janine Usalj (seventh defendant) Representation: Counsel: Mr J Stevenson SC, Mr S Aspinall (plaintiff) Solicitors: Henry Davis York (plaintiff) Bransgroves Lawyers (first, second, fifth and seventh defendants File Number(s): 2009/00298731

Judgment

The notice of motion 1There is before the Court a notice of motion under cover of which the first, second, fifth and seventh defendant's seek to set aside a judgment entered against them on 23 September 2010. There is no application before the Court seeking to set aside the judgments entered against the third, fourth or sixth defendants.

The procedural history 2These proceedings were commenced on 8 December 2009. 3The fourth defendant and the sixth defendant have not filed Commercial List responses. Default judgment has been entered against them. 4On 17 March 2010 the first, second, third, fifth and seventh defendants - the father, mother, brother, sister and wife, respectively of the sixth defendant - together, the "remaining defendants" - filed Commercial List responses. 5On 24 May 2010 directions were made, by consent, that the remaining defendants file and serve their evidence by 13 August 2010. 6That direction was not complied with. 7As a result, the plaintiff caused the matter to be restored to the list on 3 September 2010. 8There was no appearance for the remaining defendants. 9Hammerschlag J fixed the matter for final hearing on 23 September 2010. 10On 23 September 2010 the matter was called on for final hearing. 11The remaining defendants appeared by counsel. The third, fifth and seventh defendants were present in Court. 12The remaining defendants, by their counsel, sought an adjournment of the proceedings. McDougall J refused the adjournment. 13His Honour stated: [13] In the present case, there is a strong reason for thinking that, whatever the reason for it, the remaining defendants have done little to perform their duty under s56(3), and have been less than attentive to the performance of the interlocutory activities that were, on their part to be undertaken. [14] I am not satisfied that the affidavit of the employed solicitor [in support of the application for adjournment] shows, in any convincing way, that the remaining defendants have tried their hardest to comply with their obligation, but have been prevented, by factors beyond their control, from being ready for hearing. [15] On the contrary, I think, it is open to infer that the remaining defendants, in effect, chose to put their family concerns ahead of their obligation to the Court. 14On delivery of that judgment, the remaining defendants, and their counsel, withdrew. 15The matter proceeded on an undefended basis in their absence and, in the result, McDougall J entered judgment and made final orders [2010] NSWSC 1105. 16It is common ground that the parties came to an agreement by which the 3 properties in question were not put up for sale in the period pending the hearing of the Motion.