McCarthy v National Australia Bank Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McCarthy v National Australia Bank Ltd [2015] NSWCA 32

Hearing dates:

24 February 2015

Decision date:

24 February 2015

Before:

Basten JA

Decision:

1.Adjourn the present motion until 9am, Monday 16 March 2015.

2.Grant an interim stay until that time of the default judgment and orders obtained by the Bank on 28 February 2014.

3.Grant leave to the applicant, Warren McCarthy, to issue and serve no later than 5pm on Monday, 2 March 2015 a subpoena to produce documents in the form provided to the Court at the hearing in the Equity Division on 26 November 2014 to be returnable on 16 March 2015 with leave to the Bank to take such objection as it thinks fit to the subpoena or any part thereof, which objection will be considered by the Court on 16 March 2015.

4.The costs of today will be costs in the motion.

Catchwords:

PRACTICE AND PROCEDURE – application for stay of writ of possession – applicant seeking leave to appeal from refusal of judge to set aside default judgment – whether evidence supportive of proposed grounds of defence – leave to serve subpoena on respondent Bank – interim stay granted to allow application to be presented in a timely manner

Category:

Procedural and other rulings

Parties:

Warren Brian McCarthy (Applicant)
National Australia Bank Ltd (Respondent)

Representation:

Counsel:
Applicant Self-represented
Mr DC Price (Respondent)

Solicitors:
Applicant Self-represented
DibbsBarker

File Number(s):

CA 2015/13848

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

National Australia Bank v McCarthy [2014] NSWSC 1819

Date of Decision:

19 December 2015

Before:

Hall J

File Number(s):

2014/5111

Judgment

1. BASTEN JA: On 23 January 2008, the applicant, Warren Brian McCarthy, obtained financial accommodation from the National Australia Bank Ltd (“the Bank”). The primary purposes of the lending were to provide funds to pay out an existing financial arrangement between the applicant and the St George Bank and to allow the applicant a source of income to support himself, with, at least in anticipation, further funds to be made available to allow the development of a property when the relevant approvals came through.

2. The applicant proved unable to meet his obligations under the loan agreement as a result of which on 7 January 2014 the Bank commenced proceedings in the Supreme Court, seeking a judgment against the applicant in an amount of some $683,000 and seeking possession of the applicant’s land at Korora in northern New South Wales.

3. The date of service relied upon in the proceedings below appears to have been 28 or 29 January 2014. On 28 February 2014, the Bank obtained a default judgment. It is agreed between the parties, although the Court has no evidence in this respect, that the Bank will seek an eviction of the applicant from his home tomorrow at 9.30am, absent a stay of the judgment and orders in its favour.

4. On 5 March 2014 the applicant filed a notice of motion seeking to have…