CBA v Scordo - [2025] VSC 256

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

MORTGAGE RECOVERY LIST

S ECI 2024 04789

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)	Plaintiff
v
JOSEPH ROBERT SCORDO	Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2025
DATE OF RULING:	13 May 2025
CASE MAY BE CITED AS:	CBA v Scordo
MEDIUM NEUTRAL CITATION:	[2025] VSC 256

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DEFAULT JUDGMENT — Application by defendant to set aside judgment obtained in default of appearance — Defendant claimed judgment entered irregularly because writ and statement of claim not served personally — Plaintiff relied on agreement for service contained in Memorandum of Common Provisions attached to registered Mortgage —Defendant claimed he had filed a notice of appearance — Whether defendant had already filed an appearance — Whether defendant had an arguable defence on the merits if judgment regularly obtained — rr 6.02, 6.14, 8.07, 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 — Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N Marlow-Weir	Gadens
The Defendant in person

HER HONOUR:

By his summons filed on 24 February 2025, the defendant seeks an order setting aside the default judgment obtained by the plaintiff in default of appearance on 4 December 2024.

Background to the default judgment

On or about 12 June 2015, the defendant entered into a loan agreement with the plaintiff for a 30-year home loan in the amount of $357,889 (‘Home Loan Agreement’). The Home Loan Agreement comprised a ‘Consumer Credit Contract Schedule’[1] signed by the plaintiff and the defendant. It incorporated the plaintiff’s standardised ‘Consumer Mortgage Lending Products Terms and Conditions dated 15 December 2014’.[2]
[1]Affidavit of Manoj Samuel Thomas sworn 14 March 2025, Exhibit MST-1, 14–19 (‘Thomas Affidavit’).
[2]Thomas Affidavit, Exhibit MST-1, 20-95.

The security given for the loan included, amongst other things, a mortgage over the real property located at 22 Wicklow Drive, Invermay Park, Victoria (‘Property’).[3]
[3]Thomas Affidavit, Exhibit MST-1, 18 (Item K).

On 20 July 2015, the defendant became the registered proprietor of the Property and the plaintiff registered mortgage AM039377G (‘Mortgage’) over the Property.[4] The Mortgage incorporated memorandum of common provisions AA1754 (‘MCP’).[5]
[4]Thomas Affidavit, Exhibit MST-1, 104.
[5]Thomas Affidavit, Exhibit MST-1, 105 (Mortgage), 106–123 (MCP).

The defendant defaulted in payment under the terms of the Home Loan Agreement and on 14 June 2023, the plaintiff issued a default notice in respect of the arrears, requiring him to make payment by 24 July 2023.[6] The arrears remain unpaid.
[6]Thomas Affidavit, Exhibit MST-1, 217–220.

On 10 May 2023, the defendant (as plaintiff) commenced Federal Court proceeding VID 354 of 2023 against the plaintiff (in that proceeding, the defendant) seeking to avoid the Home Loan Agreement and Mortgage. On 17 November 2023, Wilson JR granted summary judgment in favour of the plaintiff. The defendant sought a review of that decision and on 12 April 2024, Button J dismissed the defendant’s review application and the proceeding.[7] Some of the arguments raised in that proceeding and rejected by…

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.

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Details

Case: [2025] VSC 256
Decision Date: 13 May 2025

CaseChat Overview and Summary

In the Supreme Court of Victoria, the Commonwealth Bank of Australia sought default judgment against Scordo. The dispute arose from an unpaid debt secured by a mortgage over real property. The bank applied for default judgment after Scordo failed to appear and defend the proceedings. Scordo subsequently sought to set aside the default judgment, contending that the writ and statement of claim were not served personally as required, and thus the judgment was irregular. The bank argued that service was proper, relying on an agreement for service contained in a Memorandum of Common Provisions attached to the mortgage. The central legal issues for the court were whether the defendant had already filed an appearance, whether the judgment was irregular due to the service issues, and if Scordo had an arguable defence on the merits.

The court examined the procedural history and the relevant rules of the Supreme Court (General Civil Procedure) Rules 2015. It found that Scordo had not filed a notice of appearance prior to the default judgment. The court also held that even if there were irregularities in service, Scordo did not have an arguable defence on the merits. The court concluded that the application to set aside the default judgment should be dismissed.

The court's decision was based on the procedural requirements and the lack of an arguable defence on the merits. The application to set aside the default judgment was dismissed, and the default judgment against Scordo remained in place. The court held that Scordo had not met the criteria under the rules for setting aside the judgment, and no further orders were made in relation to the application.

Orders