National Australia Bank v McCarthy - [2015] NSWSC 1040

Supreme Court

New South Wales

Medium Neutral Citation: National Australia Bank v McCarthy [2015] NSWSC 1040
Hearing dates: 23 July 2015
Decision date: 29 July 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Dismiss the defendant’s notice of motion filed on 1 July 2015.
2. Unless an application for a different order is made to my Associate in writing within seven days hereof, order the defendant to pay the plaintiff’s costs of the motion.
Catchwords: PRACTICE AND PROCEDURE – application to stay writ of possession – application to set aside default judgment – no arguable defence on the merits – application dismissed
Legislation Cited: Contracts Review Act 1980 (NSW)
Cases Cited: Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 269
Burston Finance v Speirway Limited [1974] 1 WLR 1648
Drew v Lockett (1863) 32 Beav 499
Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24
Elkofairi v Permanent Co Ltd [2002] NSWCA 413
Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
National Australia Bank Limited v Smith [2014] NSWSC 1605
National Australia Bank Ltd v Rice [2015] VSC 10
National Australia Bank Ltd v Rice (No. 2) [2015] VSC 147
National Australia Bank v McCarthy [2014] NSWSC 1819
National Australia Bank v McCarthy [2015] NSWSC 731
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41
Category: Principal judgment
Parties: National Australia Bank Limited (Plaintiff)
Warren Brian McCarthy (Defendant)
Representation:
Counsel:
DC Price (Plaintiff)
Defendant in person
Solicitors:
DibbsBarker Lawyers (Plaintiff)
Defendant in person

File Number(s): 2014/5111

Judgment

Introduction

By notice of motion filed on 1 July 2015, the defendant sought a stay of the writ of possession with respect to property in Jordans Way, Korora Basin, New South Wales (the Property), in respect of which the plaintiff, the National Australia Bank (the NAB), obtained default judgment on 28 February 2014. The plaintiff also sought an order “to have the matter fully heard by the Court”.
At the hearing of the notice of motion the defendant sought to have the default judgment set aside, although he did not formally amend the notice of motion. The defendant’s written submissions filed on 20 July 2015 anticipated such an application. I entertained the application to set aside the default judgment as well as the application for a stay, since no other ground was propounded for a stay, other than that the defendant had an arguable defence on the merits. Moreover I understood the defendant’s application to have the matter fully heard by the Court to be, in substance, an application that he ought be allowed to defend the proceedings.
A person who called himself “Elder John” sought leave to appear on behalf of the defendant. Mr Price, who appeared on behalf of the plaintiff (the NAB), opposed the application, in part on the grounds that Mr John is a member of a church which has lodged a caveat on the title to the Property. I refused the application. Accordingly, the defendant represented himself at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1040
Decision Date: 29 July 2015

CaseChat Overview and Summary

In the matter of National Australia Bank versus McCarthy, the case before the court involved an application to stay a writ of possession and an application to set aside a default judgment. The plaintiff, National Australia Bank, sought to enforce a writ of possession against the defendant, McCarthy, who had failed to respond to the claim. McCarthy subsequently applied to the court to stay the writ of possession and to set aside the default judgment, arguing that there was an arguable defence on the merits. The court was required to determine whether there was indeed an arguable defence and whether it was appropriate to grant the relief sought by McCarthy.

The court considered the criteria for setting aside a default judgment and staying a writ of possession. It assessed whether McCarthy had a bona fide defence to the claim, whether there was a reasonable explanation for the failure to appear, and whether there was a substantial injustice if the relief was not granted. The court found that McCarthy had not established an arguable defence on the merits and that the failure to respond was inexcusable. Consequently, the court concluded that the application to set aside the default judgment and stay the writ of possession should be dismissed.

The court's decision hinged on the lack of an arguable defence presented by McCarthy. It emphasised the importance of timely responses to legal proceedings and the consequences of default. The court held that the relief sought by McCarthy was not warranted, as there was no reasonable prospect of success on the merits and no substantial injustice if the writ of possession was enforced. The application was dismissed, and the writ of possession remained in effect.

As a result of the court's decision, the writ of possession issued by the National Australia Bank against McCarthy stands, and McCarthy's applications to stay the writ and to set aside the default judgment were dismissed. The bank is entitled to enforce the writ of possession as per the original judgment.

Orders