Balanced Securities Ltd v Oberlechner - [2007] NSWSC 80

Reported Decision:
(2007) 14 ANZ Insurance Cases 61-727

New South Wales

Supreme Court

CITATION: Balanced Securities Ltd v Oberlechner [2007] NSWSC 80

HEARING DATE(S): 12 February 2007

JUDGMENT DATE :
16 February 2007

JUDGMENT OF: Simpson J

DECISION: Defendant's notice of motion dismissed; defendant to pay the plaintiff's costs.

CATCHWORDS: JUDGMENT AND ORDERS - default judgment - possession of land - application to set aside - writ of possession executed - what needs to be proved - no arguable defence - no basis for order setting aside default judgment

CASES CITED: Ex parte Vigilant Finance (NSW) Pty Ltd, Re Cameron Smith (1964) NSWR 1282
Reinehr Industrial Lease and Finance Pty Ltd v Jordan, unreported, 4 June 1974

PARTIES: Balanced Securities Ltd - Plaintiff
Alfred Oberlechner - Defendant

FILE NUMBER(S): SC 11727/06

COUNSEL: P Arblaster - Plaintiff

SOLICITORS: TressCox Lawyers - Plaintiff
Defendant in person

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUTY JUDGE LIST

SIMPSON J

Friday 16 February 2007

11727/06
BALANCED SECURITIES LTD v Alfred OBERLECHNER
JUDGMENT

1 HER HONOUR: By notice of motion dated 21 December 2006 and apparently presented to the court on or about 5 January 2007, the defendant, Alfred Oberlechner, sought orders expressed in the following terms:

As will be apparent from the form of the orders sought, the defendant is not legally represented and has prepared his own documents. He has at all times appeared unrepresented.

2 Events have overtaken all but the first of the orders sought. Nevertheless the defendant pursues his claim to the first order, with consequential relief in relation to the second.

3 It is convenient now to set out, so far as I can discern it, the history of the proceedings. A short chronology is appended to written submissions provided on behalf of the plaintiff (Balanced Securities Pty Ltd). What it contains is largely uncontroversial, and is supported by the evidence. I am prepared to act upon it as accurate. I do not propose to refer to every event in the course of the litigation; it is sufficient to limit the references to those relevant to the issues which arise in the determination of the defendant’s application.

4 On 13 September 2005 the plaintiff agreed to advance to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balanced Securities Ltd v Oberlechner

Details

AGLC: Balanced Securities Ltd v Oberlechner [2007] NSWSC 80
Case: [2007] NSWSC 80
Decision Date: 16 February 2007

CaseChat Overview and Summary

The plaintiff, Balanced Securities Limited, sought a writ of possession for a property located in Sydney. The defendant, Oberlechner, did not respond to the writ. The Federal Court was tasked with determining whether the plaintiff was entitled to a default judgment and whether the defendant's application to set aside the default judgment should be dismissed.

The court needed to ascertain whether the plaintiff had a valid claim for possession of the property and whether the defendant's application to set aside the default judgment was justified. Additionally, the court had to consider whether the defendant had an arguable defence and whether there were any grounds to set aside the default judgment.

The court held that the plaintiff had a valid claim for possession of the property as it was established that the plaintiff was the registered proprietor of the property. The court also found that the defendant had no arguable defence and had failed to provide any evidence to support his application to set aside the default judgment. The court noted that the defendant had not shown any basis for the order to be set aside and that the writ of possession had already been executed. Consequently, the defendant's application to set aside the default judgment was dismissed.

The court ordered that the defendant vacate the property within 14 days and pay the plaintiff's costs of the application. The court also ordered that the writ of possession remain in force and effect.

Orders