Goater v Commonwealth Bank of Australia

In *Goater v Commonwealth Bank of Australia*, the applicants (mortgagors) sought to appeal a decision of the Common Law Division of the Supreme Court of New South Wales. The dispute concerned a default judgment entered against the mortgagors in favour of the Commonwealth Bank of Australia (the Bank), which sought to realise its security under a mortgage following default on loan and overdraft agreements. A writ of possession had been issued and executed pursuant to the default judgment.

The primary legal issues before the Court of Appeal were whether a default judgment could be set aside after a writ of possession had been issued and executed, and whether the mortgagors had breached a dispute resolution agreement with the Bank, thereby allowing the Bank to proceed with its claim. The court also considered the effect of a complaint made to the Financial Ombudsman Service and the Bank's obligations under sections 912A and 913B of the *Corporations Act 2001* (Cth).

The Court of Appeal reasoned that the principle of finality in judgments, while important, was not absolute and could be displaced in circumstances where it was necessary to prevent injustice. The court found that the mortgagors had not breached the dispute resolution agreement and that the Bank's failure to abide by the conditions of that agreement meant it could not rely on the statement of claim issued prior to the agreement. The court also noted that the Bank had not provided the required notice of its application for default judgment.

The Court of Appeal allowed the appeal, set aside the default judgment and the orders made in the Common Law Division, and ordered that the Bank pay the defendants' costs in the Common Law Division. The court also ordered that the Bank pay the applicants' costs in the Court of Appeal.