Commonwealth Bank of Australia v Kilpatrick [2013] NSWSC 169

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Kilpatrick [2013] NSWSC 169 Hearing dates: 22 February 2013 Decision date: 08 March 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Mr Kilpatrick's motion be dismissed with an order for costs in favour of the Bank, as agreed or assessed. 2. The writ of execution is stayed for 14 days from the date of this decision. Catchwords: PROCEDURE - notice of motion - orders seeking to set aside the default judgment; leave to file a defence; dismissing the statement of claim; and in the alternative, staying the execution of the writ - whether default judgment made irregularly, illegally or against good faith - whether default judgment should be set aside - explanation for delay in filing a defence - whether default judgment was obtained without notice - whether the proposed defence asserted bona fide - whether defence raises triable issue - whether it be futile to set aside the default judgment - whether statement of claim should be dismissed under Rule 13.4 or struck out under Rule 14.28 - whether there should be a stay - orders - motion dismissed - costs Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Contracts Review Act 1980 National Consumer Credit Protection Act 2009 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Commonwealth Bank of Australia v Wales [2012] NSWSC 407 Commonwealth Bank of Australia v Larsen [2012] NSWSC 408 Faircharm Investments Ltd v Citibank International plc [1998] EWCA Civ 171 Hamafam Pty Ltd & Ors v Saadullah & Anor [2007] NSWSC 818 Monas v Perpetual Trustees Victoria Ltd [2011] NSWCA 417; (2011) 80 NSWLR 739 Category: Procedural and other rulings Parties: Commonwealth Bank of Australia ACN 123 123 124 (Plaintiff) Bradley Allan Kilpatrick (Defendant) Representation: Counsel: Mr M Collins (Plaintiff) Solicitors: Gadens Lawyers (Plaintiff) Mr B Kilpatrick, unrepresented (Defendant) File Number(s): 2011/379547 Publication restriction: None