Commonwealth Bank of Australia v Larsen [2012] NSWSC 408

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Larsen [2012] NSWSC 408 Hearing dates: 2 April 2012 Decision date: 27 April 2012 Before: McCallum J Decision: Defendant's application to set aside default judgment granted; stay of writ of possession extended. Catchwords: MORTGAGES - mortgage securing obligations under a credit contract - where defendant dissuaded by credit provider from making hardship application in accordance with the National Credit Code - default judgment entered without notice to defendant - whether default judgment should be set aside to allow defendant to avail herself of remedies under the Code Legislation Cited: National Consumer Credit Protection Act 2009 (Cth) Real Property Act 1900 Uniform Civil Procedure Rules 2005 Cases Cited: Commonwealth Bank of Australia v Wales [2012] NSWCA 407 Category: Interlocutory applications Parties: Commonwealth Bank of Australia (plaintiff) Marianne O'Loughlin Larsen (defendant) Representation: Counsel: A Casseldon (plaintiff) Defendant in person Solicitors: Gadens (plaintiff) File Number(s): 2011/281536 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 31 August 2011. On 11 November 2011, judgment was entered against the defendant, Ms Larsen, by default. A writ of possession was issued on 23 November 2011 but subsequently stayed. 2The proceedings came before me as duty judge to hear Ms Larsen's application to have the default judgment set aside. On 10 April 2012, I ordered that the default judgment be set aside pursuant to r 36.16(2) of the Uniform Civil Procedure Rules 2005, reserving my reasons. For abundance of caution, I also extended the stay of the writ of possession. These are my reasons for making those orders. 3I should note that the first order made by me requires correction under r 36.17 (the slip rule). The notice of motion identified the default judgment as having been entered on 2 November 2011 and that was reflected in the order I made. However, an interrogation of the JusticeLink system by my Associate reveals that judgment was in fact entered on 11 November 2011. The order made on 10 April 2012 is corrected accordingly. 4The present application was heard on the same day as a similar application against the same plaintiff. Although the applications were not heard together, they raised the same point and the bank was in each case represented by the same counsel. In the interests of brevity, these reasons should be read together with my reasons published today in the other matter: see Commonwealth Bank of Australia v Wales [2012] NSWCA 407.