Saunders v RHG Mortgage Corporation Limited
[2016] NSWCA 313
•16 November 2016
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Saunders v RHG Mortgage Corporation Limited [2016] NSWCA 313 Decision date: 16 November 2016 Before: Beazley P in chambers Decision: Decline to remit the matter.
Catchwords: PRACTICE AND PROCEDURE – appeal from judgment of Associate Judge – appeal competent but irregularly commenced – whether matter should be remitted to Common Law Division – where hearing date allocated – where parties wish to proceed Legislation Cited: Supreme Court Act 1970 (NSW), s 51 Cases Cited: Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151 Category: Procedural and other rulings Parties: Gregory Saunders (Applicant)
RHG Mortgage Corporation Limited (Respondent)File Number(s): 2016/220165 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law
- Citation:
- RHG Mortgage Corporation Limited v Saunders [2016] NSWSC 929
- Date of Decision:
- 6 July 2016
- Before:
- Harrison AsJ
- File Number(s):
- 2015/214636
Judgment
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BEAZLEY P: On 12 August 2016, the applicant filed a summons seeking leave to appeal from an interlocutory order made by Harrison AsJ on 6 July 2016 dismissing the applicant’s notice of motion to set aside default judgment entered in favour of the respondent on 2 December 2015.
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In Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151 I explained that appeals from an Associate Judge lie to a Judge in a Division of the Supreme Court. The proceedings in this case were thus irregularly commenced although the appeal itself is competent.
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Both parties have requested this Court not to exercise its powers pursuant to the Supreme Court Act 1970 (NSW), s 51(2)(b) to remit the matter to the Common Law Division of the Supreme Court.
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In brief, the principal arguments advanced as to why the matter ought not be remitted were as follows.
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First, before it came to the attention of the Court that the appeal ought to have been brought in the Common Law Division, a direction had been given for the concurrent hearing and 30 November 2016 had been allocated as the date for hearing.
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Secondly, the applicant has been evicted from his home as a result of an order for possession having been made.
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Thirdly, the respondent has been restrained from selling the property pursuant to an order made by Garling J on 25 July 2016.
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Next, it was a condition of ordering a stay on the sale of the property that the applicant make regular payments to the respondent and that his appeal be prosecuted expeditiously.
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Finally, a question arises as to whether the National Credit Code applies and, if so, its proper construction.
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In my opinion, the various matters raised by the parties in their submissions are such as to warrant the matter remaining in this Court. Accordingly, I decline to remit the matter to the Common Law Division pursuant to s 51(2)(b). The hearing date of 30 November 2016 is confirmed.
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Decision last updated: 16 November 2016
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