Bendigo and Adelaide Bank Ltd v Trinh

[2017] NSWSC 804

Supreme Court

New South Wales

Medium Neutral Citation:

Bendigo & Adelaide Bank Ltd v Trinh [2017] NSWSC 804

Hearing dates:

20 June 2017

Date of orders:

20 June 2017

Decision date:

20 June 2017

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. That the Order made on 26 May 2017 be vacated.

 

2. Order No. 1 made on 24 February 2017 be varied to the extent that the time to file an application for default judgment be extended to 28 July 2017.

 NOTE: The Plaintiff agrees not to file an application for default judgment within 7 days of today’s date.

Catchwords:

PROCEDURE – judgments and orders – order dismissing proceedings – UCPR r 12.8 – application to set aside order – where order should not have been made – proceedings reinstated

Legislation Cited:

National Consumer Credit Protection Act 2009 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Bendigo & Adelaide Bank Ltd (Plaintiff)
Mylinh Trinh (Defendant)

Representation:

Counsel:
D Woods (Plaintiff)
Mentioned by D Woods (Defendant)

  Solicitors:
Curwoods Lawyers (Plaintiff)
Unrepresented (Defendant)

File Number(s):

2016/60741

Judgment

1. These proceedings commenced on 25 February 2016, seeking possession of land.

2. The Statement of Claim was served on the occupiers on 1 March 2016 and on the Defendant personally on 21 May 2016. No defence was filed, and on 31 August 2016 an application for default judgment was filed by the Plaintiff.

3. On 17 November 2016 the application for default judgment was stayed at the request of the Plaintiff.

4. On 12 December the Plaintiff notified the Court that the Defendant had lodged a dispute with the Financial Ombudsman Service. As a result, the Plaintiff was unable to take any further steps in the proceedings until the FOS complaint had been determined.

5. On 27 February 2017 the Plaintiff appeared at a show cause hearing. At that time the FOS dispute had just been determined. In those circumstances, the registrar ordered that the Plaintiff file an application for default judgment by 10 March 2017. Shortly thereafter, the Defendant made an application under the National Consumer Credit Protection Act 2009 (Cth) based on hardship grounds. In a similar way to the restrictions imposed by FOS, the Plaintiff was thereafter not able to take any steps to further the default judgment application which it had been directed by the registrar.

6. The hardship application was determined on 23 May 2017. Unfortunately, the Plaintiff did not inform the Court about that hardship application. That led the Court on 26 May 2017 to make an order dismissing the proceedings under r 12.8 Uniform Civil Procedure Rules 2005 (NSW) on the basis that no steps had been taken in the proceedings for the preceding nine months.

7. The evidence discloses that steps were in fact taken and that for many months of the period preceding the dismissal of the proceedings the Plaintiff was prevented by various pieces of legislation from being able to take any further steps in the proceedings. The dismissal seems to have been brought about by a breakdown in communications between the solicitors acting for the Plaintiff and the Court.

8. The Plaintiff now seeks by Notice of Motion dated 9 June 2017 that the dismissal of the proceedings order be vacated. The Defendant appeared this morning and consented to the order being vacated on the basis that the Plaintiff agreed not to file an application for default judgment within the next seven days.

9. I am satisfied that it is appropriate that the order made 26 May 2017 be vacated. I note that the Defendant has consented to these orders, although they are ultimately a matter for the discretion of the Court. I make orders in terms of paras 1 and 2 of the Short Minutes of Order. I note that the Plaintiff agrees not to file an application for default judgment within seven days of today's date.

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Decision last updated: 20 June 2017