National Australia Bank Limited v McCarthy (No 4) [2015] NSWSC 1147

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v McCarthy (No 4) [2015] NSWSC 1147 Hearing dates: 10 August 2015 Decision date: 10 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The application for a stay of the execution of a Writ of Possession is refused. Catchwords: REAL PROPERTY – possession of land – application to stay execution of writ of possession – defendant seeking special leave to appeal to High Court of Australia to set aside default judgment – grounds of appeal doomed to failure – no exceptional circumstances demonstrated – stay refused Legislation Cited: Civil Procedure Act 2005 (NSW),s 135 Cases Cited: National Australia Bank v Warren Brian McCarthy [2015] NSWSC 731 National Australia Bank v McCarthy [2015] NSWSC 1040 National Australia Bank Limited v McCarthy [2014] NSWSC 1819 Category: Procedural and other rulings Parties: National Australia Bank Limited Warren Brian McCarthy Representation: Counsel: D C Price (Plaintiff)

Solicitors: DibbsBarker (Plaintiff) In person (Defendant) File Number(s): 2014/5111

ex tempore Judgment 1. This is an application for stay of the execution of a writ for possession regarding premises near Coffs Harbour that is due to take place tomorrow, 11 August 2015, at 9am. 2. The matter came before me in the Duty List this afternoon, at which time Mr McCarthy appeared unrepresented and ex parte. I permitted him to file in Court the notice of motion and affidavit upon which he relies of today's date, contingent upon any objection by the lawyer for the plaintiff, the National Australia Bank (NAB). 3. Mr McCarthy was content for my Associate very urgently to contact the solicitors and counsel who had been involved in the past on behalf of NAB, and that bore fruit with the urgent attendance of Mr Price of counsel. 4. The matter has a long history. It was amply reviewed in the judgments of Hall J of 19 December 2014: National Australia Bank Limited v McCarthy [2014] NSWSC 1819; Hamill J of 6 June 2015: National Australia Bank v Warren Brian McCarthy [2015] NSWSC 731; and Adamson J of 29 July 2015: National Australia Bank v McCarthy [2015] NSWSC 1040, all of which are on the file. 5. Suffice to say, Mr McCarthy has repeatedly applied to the Court to have set aside a default judgment that was entered against him as long ago as 28 February 2014. That was with regard to a statement of claim that was filed on 7 January 2014, seeking a very substantial sum of money and possession. 6. Three judges of the Common Law Division have determined that he does not have an arguable defence and, accordingly, have refused to set aside the default judgment. 7. Mr McCarthy sought leave to appeal on 3 August 2015 from the judgment of Adamson J, an application that was dismissed on 6 August 2015 by Basten JA. 8. By way of a document filed in the Registry of the High Court of Australia today, Mr McCarthy has sought special leave to appeal to that honourable Court. 9. It can be seen that he has taken a different tack; namely, impugning the inherent nature of a default judgment. For example, proposed Ground 2 complains that the default judgment was not attended by written reasons, and proposed Ground 5 is founded upon the contention that the default judgment did not permit the merits of the defence to be heard. 10. I respectfully consider that this question of a stay can be resolved expeditiously. To my mind, the proposed grounds of appeal to the High Court are lacking in merit to the extent that they are unarguable. To the extent they complain about the inherent nature of a default judgment, I consider they are ill founded to the point of being doomed to failure. 11. Nor do I consider Mr McCarthy has demonstrated exceptional circumstances of any kind. 12. It is true that I have a discretion, pursuant to s 135 of the Civil Procedure Act 2005 (NSW), to stay execution of a writ and other enforcement of judgments and orders of this Court. 13. But in the circumstances I have outlined, I decline to exercise my discretion to stay the Writ of Possession that is to be executed tomorrow at 9am. 14. Because I was told by counsel for NAB that its position with regard to costs is fully protected by way of the facility or the security document, I do not propose formally to order costs. 15. In the circumstances, my order is as follows: 1. The application for a stay of the execution of a Writ of Possession is refused.