Jae Sung Ko v KEB Australia Bank Limited [2011] NSWSC 1341

Supreme Court New South Wales

Medium Neutral Citation: Jae Sung Ko v KEB Australia Bank Limited [2011] NSWSC 1341 Hearing dates: 28 October 2011 Decision date: 28 October 2011 Jurisdiction: Common Law Before: Rothman J Decision: 1. The motion is dismissed 2. No order as to costs. Catchwords: Procedure - civil - motion to stay and/or set aside default judgment and execution of a writ of possession - motion dismissed Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Category: Procedural and other rulings Parties: Jae Sung Ko (Plaintiff) KEB Australia Ltd (Defendant) Representation: Jaemok Ko (plaintiff's borther) Christopher Palmer (for the defendant) File Number(s): 2001/352132

EX tempore Judgment 1The Court granted leave for the applicant to file a notice of motion in court. The Court waived the fees in relation to the motion. The motion seeks to stay and/or set aside default judgment and execution of a writ of possession in relation to commercial property in Strathfield Sydney. 2The applicant on the motion is currently incarcerated at the Metropolitan Reception and Remand Centre at Silverwater having been declared mentally unfit under the Mental Health (Forensic Provisions) Act 1990. 3The property in respect of which this application is made is due to be auctioned, after a period of advertising, at a public auction tomorrow, that is Saturday 29 October 2011. The property is said to be valued at something in or around $850,000 and the amount currently owing to the lending institution, being the respondent to the motion and the plaintiff in the original proceedings, is something more than $600,000. 4No reason of any persuasiveness is put as to why, at this late stage, the auction should be held up. While I sympathise with what may be difficulties for the applicant and his family, given his current incarceration and their limited knowledge of the English language, nothing has been put which would warrant the wasting of the expenses that have been incurred in the advertising of the property and the arranging for the auction. 5I am informed from the bar table that it is likely there will be a reserve price on the property which reserve price would be no less than the amount owing to the lending institution. In the meantime, interest is running at default rates. Whilst there may be good reason to hold up the auction, none has been presented. There also are very good reasons for the auction to go ahead. In any event, that is not the test that the Court must adopt. The test is whether there is good reason to injunct the holding of the auction for sale of the property, i.e. is there a serious question to be tried on an issue that would, if successful, defeat the plaintiff's right to sell the property and does the balance of convenience favour a stay. 6The Court finds that, on the material before the Court, there is no good reason to injunct the holding of the auction for sale of the property. 7The Court makes the following orders: 1. The motion is dismissed 2. No order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2011