National Australia Bank Limited v Kim Francis Hunter & Anor

National Australia Bank Limited commenced proceedings against Kim Francis Hunter and his wife, seeking possession of property. The case was heard in the Supreme Court of New South Wales. The dispute arose from a consent judgment entered on 7 March 2012, where the bank and the defendants agreed to the possession of the property. However, before the consent judgment, Hunter executed a transfer of the property to his wife, which was not registered. The defendants sought to set aside the consent judgment under the Uniform Civil Procedure Rules, rules 36.15 and 36.16, arguing the judgment was irregular.

The court needed to determine whether the consent judgment was entered irregularly because the Statement of Claim was only served on the trustee in bankruptcy of the first defendant, and if the form of the judgment for possession was irregular. Additionally, the court had to consider whether the motion to set aside the judgment required it to determine the authority of the trustee to sign the consent judgment, which in turn would require the court to decide if the first defendant's interest in the property vested in the trustee. The court held that there was no requirement to serve the first defendant with legal process after his bankruptcy, and the form of the judgment for possession was not irregular. The court also held that the issues concerning the trustee's authority and the vesting of the first defendant's interest in the property fell within the exclusive jurisdiction of the Federal Court of Australia and the Federal Magistrates Court.

The Supreme Court of New South Wales held that the consent judgment was not irregular, and therefore, the motion to set aside the judgment was dismissed. The court emphasised that the issues concerning the trustee's authority and the vesting of the first defendant's interest in the property were outside its jurisdiction, and should be determined by the Federal Court of Australia or the Federal Magistrates Court. Consequently, the consent judgment remained in effect, and the bank was entitled to possession of the property.