Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2]

The case of Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] involved a dispute between the plaintiff, Permanent Custodians Ltd, and the defendants, Elite Grains Pty Ltd, represented by Mr and Mrs Culleton. The primary dispute was regarding an application to set aside a default judgment that had been obtained against the defendants in the absence of a memorandum of appearance or timely defence. The case was heard in the Supreme Court of New South Wales. The defendants argued that the default judgment, which had been in place for over three years, should be set aside due to alleged unconscionability and delay in the plaintiff's application.

The legal issues the court had to decide included whether the default judgment, obtained after leave under O 62A, could be set aside under RSC O 13 r 10, and if so, whether the defendants' arguments regarding the alleged unconscionability and delay were valid. The court also needed to consider the defendants' explanations for the delay in proceeding to move to set aside the judgment. The court's reasoning focused on the protective regime established by O 62A, which requires close scrutiny by a registrar to ensure the administrative process of obtaining default judgment in mortgage actions does not miscarry. The court found that the defendants' arguments, which emerged over several affidavits, were untenable and that no irregularity in the default judgment process was detectable.

The court concluded that the application to set aside the default judgment should be refused. The reasoning was based on the protection provided by O 62A, which narrows the scope for irregularities in the administrative process of obtaining a default judgment. The court found no evidence of irregularity in the process by which the default judgment was obtained, and the defendants' arguments for unconscionability and delay were unsatisfactory. The court held that the practical consequences of the O 62A protective process meant that the default judgment remained valid and enforceable. The court's final orders confirmed the refusal of the application to set aside the default judgment, upholding the judgment as entered against Mr and Mrs Culleton on 28 May 2013.