Patrick Finlayson v Indigenous Business Australia (ABN 25 192 932 833)

[2014] HCASL 185

PATRICK FINLAYSON

v

INDIGENOUS BUSINESS AUSTRALIA (ABN 25 192 932 833)

[2014] HCASL 185
M50/2014

1. The applicant is the registered owner of land that was mortgaged to the respondent.  By proceedings commenced on 28 August 2013, in the County Court of Victoria, the respondent sought recovery of possession of the land because the applicant had defaulted under the terms of his mortgage.  On 13 February 2014, the respondent obtained judgment for possession of the land in default of defence.

2. On 11 April 2014, the County Court of Victoria (Judge Cosgrave) refused the applicant's application to set aside the default judgment on the basis that the applicant had not raised any defence on the merits which could (if accepted) succeed at trial. 

3. The Court of Appeal of the Supreme Court of Victoria (Ashley JA and Almond AJA) refused the applicant leave to appeal from the refusal to set aside the default judgment.  The Court of Appeal also declined to grant a stay of the default judgment for possession.  The applicant now seeks special leave to appeal to this Court.

4. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004. The application is brought out of time and the applicant seeks an order under r 41.02.2 dispensing with the requirement to comply with the time limit in r 41.02.1. It is not necessary to decide whether that order should be made.

5. There is no reason to doubt the correctness of the conclusions reached by the Court of Appeal.  An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
15 October 2014 S.M. Crennan