CBA v Usalj [2011] NSWSC 63

During the proceedings the guarantors believed they were being represented by a solicitor. However, communication with the solicitor took place through the son. At the time of the hearing the mother and father were overseas. The solicitor appeared solely to seek an adjournment so that the guarantors could prepare their evidence. The adjournment was denied, the guarantors did not participate in the hearing, and the bank obtained judgment.

The guarantors then sought alternative representation from Bransgroves and we filed an application to set aside judgment. The bank argued that it would be inappropriate for the Court to allow parties who are unsuccessful in obtaining an adjournment of a trial to later be allowed to set aside judgment.

The Judge acknowledged it was a tricky one. However, he noted that as the mother and father had been overseas at the time of the trial, had difficulty understanding English (and therefore did not understand what had been happening in the proceedings) he could make an exception. Another factor influencing him was that they left it to their son and he misled them into believing that their case was being prepared and they had nothing to worry about.

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