Perpetual Limited v Kelso

The dispute in Perpetual Limited v Kelso involved the Plaintiff, Perpetual Limited, as the mortgagee seeking possession of land following a default by the Defendants. The case was heard in the Supreme Court of New South Wales. The Defendants had defaulted on their mortgage payments, leading to the entry of a default judgment in favour of the Plaintiff. Subsequently, a writ of possession was issued, executed, and the Plaintiff took possession of the property. The Defendants then re-entered the property, prompting the Plaintiff to obtain a writ of restitution. The Defendants sought a stay of execution of the writ of restitution and applied to set aside the default judgment, arguing for a trial by jury with the assistance of a McKenzie friend. The court had to determine whether the Defendants could set aside the default judgment and whether they were entitled to a trial by jury.

The court examined the circumstances under which a default judgment could be set aside, considering the Defendants' application to set aside the judgment and the relief sought. The court also addressed the Defendants' claim to a trial by jury, evaluating the statutory provisions and precedents that governed such claims. The court found that the Defendants had not provided a sufficient basis to set aside the default judgment. Furthermore, the court ruled that the Defendants were not entitled to a trial by jury in this matter, as the statutory provisions did not support such a claim and the common law did not recognise a right to a jury trial in mortgage cases.

Given the court's findings, the relief sought by the Defendants was refused. The Plaintiff was accordingly entitled to proceed with the writ of restitution. The court's decision underscored the importance of strict adherence to court procedures and the limited circumstances under which a default judgment may be set aside. The court also affirmed the absence of a right to a trial by jury in mortgage cases. The final orders of the court directed that the writ of restitution be enforced, allowing the Plaintiff to regain possession of the property.