Hester v Commonwealth Bank of Australia

The applicant, Hester, sought leave to appeal and an injunction to restrain the Commonwealth Bank of Australia (the Bank) from exercising its powers of sale under a mortgage. A default judgment had been granted in favour of the Bank in 2019 due to Hester's failure to file a defence.

The primary legal issues before the court were whether Hester had provided a satisfactory explanation for a three-year delay in filing an application for leave to appeal, and whether there was an arguable defence on the merits to the Bank's claim. The court also considered the application as one to set aside the default judgment.

Brereton JA found that Hester had failed to satisfactorily explain the significant delay in seeking to appeal the default judgment. Furthermore, the court determined that there was no arguable defence on the merits, and the availability of an alternative remedy in the Common Law Division was fatal to the application for leave to appeal. Consequently, the notice of motion was dismissed with costs.