Kelly v Westpac Banking Corporation [2014] NSWCA 348

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kelly v Westpac Banking Corporation [2014] NSWCA 348 Hearing dates: 8 October 2014 Decision date: 08 October 2014 Before: McColl JA, Gleeson JA, Sackville AJA Decision: 1. Grant leave to appeal. 2. Allow the appeal with costs. 3. Treat the summons seeking leave to appeal as the notice of appeal. 4. Set aside the orders made by Campbell J on 30 September 2014. 5. In lieu of the costs order his Honour made, order Westpac to pay the costs of 30 September 2014. 6. Vacate the hearing date of 13 October 2014. 7. Refer the matter back to the Registrar to establish a timetable for any further evidence or application to amend pleadings and to set a new trial date. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - proceedings in which plaintiff bank seeks to enforce guarantee and obtain possession of defendant's home - self-represented defendant pleads Contracts Review Act defence - where plaintiff failed to serve evidence in accordance with court orders - where defendant sought to vacate hearing date due to default - where plaintiff served evidence raising new issues on defendant during adjournment application 7 business days before hearing - where new evidence included documents that should have been disclosed to defendant during discovery - where defendant contended was inadequate time before hearing date for him to prepare for hearing as well as respond to new evidence - where primary judge refused application to adjourn - whether clear case of material error Legislation Cited: Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 In re the Will of F B Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 Malouf v Malouf [2006] NSWCA 83 Provident Capital v Papa [2013] NSWCA 36; (2013) 84 NSWLR 231 Reisner v Bratt [2004] NSWCA 22 Richards v Cornford (No 3) [2010] NSWCA 134 Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 Category: Principal judgment Parties: Philip John Kelly (Appellant) Westpac Bankiong Corporation (espondent) Representation: Counsel: Appellant: self-represented Respondent: Mr J Hynes Solicitors: Appellant: self-represented Respondent: HWL Ebsworth File Number(s): CA 2014/293121 Publication restriction: No Decision under appeal Jurisdiction: 9111 Citation: Westpac Banking Corporation Ltd v Kelly [2014] NSWSC 1340 Date of Decision: 2014-09-30 00:00:00 Before: Campbell J File Number(s): SC 2013/155618