Commonwealth Bank of Australia v Wales [2012] NSWSC 407

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Wales [2012] NSWSC 407 Hearing dates: 2 April 2012 Decision date: 27 April 2012 Before: McCallum J Decision: Defendant's application to set aside default judgment granted Catchwords: MORTGAGES - mortgage securing obligations under a credit contract - where defendant sought to invoke hardship provisions of the National Credit Code - dispute lodged with Financial Ombudsman Service resolved on terms - disagreement as to compliance with terms - default judgment entered without formal notice to defendant - whether default judgment should be set aside to allow defendant to revive dispute Legislation Cited: National Consumer Credit Protection Act 2009 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Hamafam Pty Ltd v Saadullah [2007] NSWSC 818 Permanent Custodians Ltd v Upston [2007] NSWSC 223 Pope v Aberdeen Transport Co Pty Ltd [1965] NSW R 1550 Roach v B&W Steel Pty Ltd (1991) 23 NSW LR 110 Category: Interlocutory applications Parties: Commonwealth Bank of Australia (plaintiff) Tracey Marie Wales (defendant) Representation: Counsel: A Casseldon (plaintiff) P Batley (defendant) Solicitors: File Number(s): 2010/417445 Publication restriction: None

Judgment 1These are proceedings for possession and judgment in a money sum arising out of a home loan agreement secured by a mortgage. The proceedings were commenced by statement of claim filed on 15 December 2010. On 13 October 2011, default judgment was entered against the defendant, Ms Wales, and on 2 November 2011 a writ of possession was issued. 2The proceedings came before me as Duty Judge to hear an application by Ms Wales to have the default judgment set aside under r 36.15(1) and alternatively r 36.16(2) of the Uniform Civil Procedure Rules 2005. On 10 April 2012, I ordered that the default judgment be set aside and the writ of possession stayed, reserving my reasons. These are my reasons for making those orders. 3I should first note that the first order made by me on 10 April 2012 requires correction under r 36.17 (the slip rule). The order made (as sought in the defendant's notice of motion) was that the default judgment entered against the defendant on 21 October 2011 be set aside. It appears from the court file that the default judgment was in fact entered on 13 October 2011. The order is corrected accordingly.