Provident Capital Limited v Ross Leslie Norton [2012] NSWSC 17

Supreme Court New South Wales

Medium Neutral Citation: Provident Capital Limited v Ross Leslie Norton [2012] NSWSC 17 Hearing dates: 31 January 2012 Decision date: 01 February 2012 Before: Adamson J Decision: (a) the defendants' amended notice of motion filed on 7 October 2011 be dismissed; (b) the stay of execution of the writ of possession granted on 11 October 2011 is lifted; and (c) the costs of the notice of motion are reserved, pending further argument. Catchwords: PRACTICE AND PROCEDURE - application to set aside a consent order - whether judgment given against good faith - whether sufficient cause to set aside order Legislation Cited: UCPR 36.15, 36.16 Contracts Review Act 1980 Cases Cited: Coles v Burke (1987) 10 NSWLR 429 Workers Compensation Nominal Insurer v Detailed Flooring Pty Limited [2010] NSWSC 1056 Category: Interlocutory applications Parties: Provident Capital Limited Ross Leslie Norton Representation: B K Nolan - Respondent/Plaintiff L Paraska - Applicant/Defendants Tiernan Lawyers - Respondent/Plaintiff A R Conolly & Company - Applicant/Defendants File Number(s): 2011/00083334

Judgment

Background to the application 1The plaintiff is the mortgagee of the defendants' residence ( the Property ) by reason of a mortgage granted by the defendants on 1 April 2010 ( the Mortgage ). 2Consent judgment was entered for possession of the Property and for costs on 13 April 2011. On 7 September 2011, the plaintiff filed a notice of motion for a writ of possession and, on 9 September 2011, the Court issued a writ of possession. 3The defendants move on Amended Notice of Motion filed on 7 October 2011 to set aside the consent judgment, either pursuant to UCPR 36.15 or UCPR 36.16. On 11 October 2011 the Court ordered that there be a stay of execution of the writ of possession until further order. On 13 October 2011, the hearing of the plaintiff's notice of motion was listed for 31 January 2012.