Zippoz Pty Ltd v National Australia Bank Ltd [2011] NSWCA 164

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zippoz Pty Ltd v National Australia Bank Ltd [2011] NSWCA 164 Hearing dates: 20 June 2011 Decision date: 23 June 2011 Before: Basten JA at 1; Young JA at 38 Decision: (1) Dismiss the amended summons seeking leave to appeal from the judgment of Davies J of 21 April 2011. (2) Order, under s 135(2)(b) of the Civil Procedure Act 2005 , that the Sheriff take no further action to enforce the writs of possession in proceedings Nos 2010/150149, 2010/150119, 2010/150085, 2010/150096, 2010/150075, issued on 4 May 2011, for 14 days from the date of these orders. (3) Order the applicants to pay the respondent's costs in this Court, including the costs reserved on 6 June 2011. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - civil - leave required - no error on part of primary judge - whether further evidence likely to be admitted on appeal - whether further application to set aside judgment should be made to single judge.

APPEAL - civil - procedure - application to set aside default judgments - further evidence proffered on leave application - whether there had been trial or hearing on merits - Supreme Court Act 1970 (NSW), s 75A(8).

PROCEDURE - default judgment - writs of possession of land issued - no proper defence filed - whether further opportunity should be permitted to seek to set aside judgment - change of lawyers. Legislation Cited: Supreme Court Act 1970 (NSW), s 75A Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 Category: Principal judgment Parties: Zippoz Pty Ltd (First Applicant) Caporale Builders Corporation Sydney Pty Ltd (Second Applicant) Rosa Caporale (Third Applicant) Giuseppe Caporale (Fourth Applicant) Tommaso Caporale (Fifth Applicant)