Goater v Commonwealth Bank of Australia [2014] NSWCA 382

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Goater v Commonwealth Bank of Australia [2014] NSWCA 382 Hearing dates: 23 October 2014 Decision date: 07 November 2014 Before: Basten JA at [1]; Gleeson JA at [85]; Sackville AJA at [86] Decision: (1) Grant the applicants leave to appeal from the judgment given in the Common Law Division on 22 May 2014. (2) Direct that the applicants file, within 14 days, a notice of appeal in the form of the draft contained in the white folder. (3) Set aside the orders made in the Common Law Division and in place thereof: (a) set aside the default judgment entered on 7 March 2014; (b) order that the plaintiff Bank pay the defendants' costs in the Common Law Division, and (c) otherwise dismiss the defendants' notice of motion of 13 May 2014. (4) Order that the respondent Bank pay the applicants' costs in this Court. (5) Grant the applicants liberty to apply to the Registrar on three days' notice if further interlocutory orders are required. [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: BANKING AND FINANCE - default by borrowers under loan and overdraft agreements - financier seeking to realise security under mortgage - effect of complaint to Financial Ombudsman Service - effect of agreement terminating complaint - Corporations Act 2001 (Cth), ss 912A and 913B