Hester v Commonwealth Bank of Australia

Hester (the applicant) appealed to the Full Court of the Supreme Court of South Australia against a default judgment entered in favour of the Commonwealth Bank of Australia (the respondent) for possession of land. The applicant sought an extension of time to bring the appeal, which was filed approximately three years after the notice of intention to appeal.

The primary legal issues before the Full Court were whether the applicant had provided a satisfactory explanation for the significant delay in pursuing the appeal and whether the applicant had demonstrated a fairly arguable case. The default judgment had been entered because no defence was filed by the applicant, who had taken issue with the documents relied upon in the respondent's Statement of Claim but had not identified any specific error with the decision to enter default judgment itself.

The Full Court found that the explanation for the delay was not satisfactory. While the applicant had raised concerns about the documents, these concerns did not constitute a sufficiently arguable case to justify the extensive delay. The court applied the principles that an applicant seeking an extension of time must demonstrate both a satisfactory explanation for the delay and a fairly arguable case. In this instance, neither criterion was met.

Consequently, the Full Court refused leave to extend time to move on the Summons dated 13 February 2023 and ordered that the applicant pay the respondent's costs.