Australia and New Zealand Banking Group Limited v Kurzer

The plaintiff, Australia and New Zealand Banking Group Limited, sought to enforce securities against the defendants, Kurzer, in the Federal Circuit Court of Australia. The defendants filed an application to set aside a default judgment, arguing that they had an arguable defence on the merits due to alleged unconscionable conduct by the bank in enforcing the securities. They further contended that the judgment was entered irregularly, illegally, or against good faith. Additionally, the defendants applied for a stay on hardship grounds, which the bank opposed.

The court was required to determine whether the defendants had demonstrated an arguable defence on the merits. The court considered the unconscionability claim and the defendants' argument that the judgment was entered irregularly, illegally, or against good faith. The court also had to assess whether the hardship application was made prematurely. The court needed to weigh the defendants' claims against the bank's right to enforce its securities and the principles of procedural fairness.

The court found that the defendants had not demonstrated an arguable defence on the merits. The unconscionability claim was not substantiated, and there was no substantive defence to the underlying claim. The court also determined that the judgment was not entered irregularly, illegally, or against good faith. Regarding the hardship application, the court held that it was made prematurely, as the defendants had not first sought to set aside the judgment. Consequently, the application to set aside the default judgment was dismissed, and the hardship application was refused.

The court ordered that the application to set aside the default judgment be dismissed with costs. The court also ordered that the hardship application be refused. The defendants were directed to pay the bank's costs of the applications.