National Australia Bank Limited v Mary Rose Salubre

In this case, the National Australia Bank Limited (plaintiff) sued Mary Rose Salubre (defendant) for possession of a property. The defendant failed to respond to the claim, leading to a default judgment in favour of the plaintiff. The defendant later sought to set aside the default judgment, alleging ineffective personal service of the originating process. The defendant also attempted to bring a cross-claim for set-off against the plaintiff's claim for possession. The court had to determine whether the defendant's application to set aside the default judgment was valid and whether the defendant's cross-claim for set-off was permissible.

The court first examined the defendant's application to set aside the default judgment, focusing on whether the personal service of the originating process was ineffective. The court noted that the defendant had been aware of the default judgment since late 2022, despite the alleged ineffective service. The court concluded that the purpose of personal service is to give the defendant notice of the proceedings and an opportunity to respond. Since the defendant was aware of the default judgment, the court held that the application to set aside the judgment was without merit. The court also considered the defendant's cross-claim for set-off, which was based on an intuitive unfairness and the interconnectedness between the respective claims. However, the court held that the defendant's proposed cross-claim was insufficient to impeach the plaintiff's title to possession as mortgagee. The court held that there was no arguable defence to the plaintiff's claim for possession.

The court dismissed the defendant's application to set aside the default judgment and her cross-claim for set-off. The court held that the defendant had failed to establish any valid grounds for setting aside the default judgment or for bringing a cross-claim for set-off. The court also held that the defendant's proposed cross-claim was insufficient to establish any interconnectedness between the respective claims to allow equitable set-off. The court therefore dismissed the defendant's application and ordered her to pay the plaintiff's costs of the application.