Set Aside Judgment

Frog Swamp v Statewide Secured Investments [2015] NSWCA 376

The lender obtained defaults judgment and the borrower sought to set them aside over 3 years later. The borrower argued at first instance and on appeal that: The lender was not the creditor because the benefit of the loans had been assigned to another entity and so the mortgages which remained registered in the name …

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National Australia Bank v McCarthy [2015] NSWSC 1040

The lender obtained default judgment and the borrower sought to have it set aside and a stay of the writ of possession. The borrower argued that it was unconscionable for the lender to lend him money since he had insufficient income to repay the loan, placing him in a position of special disadvantage and raised …

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Hilton v Gidley [2014] NSWSC 874

A sister suffering from schizophrenia provided a guarantee and mortgage for her sister’s loan and received none of the proceeds. The borrower defaulted and the lender sought possession. The sister’s lawyer filed a submitting appearance by mistake and the lender obtained default judgment in her absence. The sister had been notified of the proceedings before …

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Sharpe v Heywood [2013] NSWCA 192

The borrower entered into a loan agreement that included security over farm machinery and a term in the loan agreement provided that in the event of default a caveat would be lodged over the borrower’s property. The loan agreement was covered by the Farm Debt Mediation Act. The parties attended mediation as required and the …

Sharpe v Heywood [2013] NSWCA 192 Read More »

Nazloomian v CBA [2013] NSWSC 681

The loan funds were deposited into the account of the wrong company, which spent them. The borrower had brought a claim against the bank, the broker and the company that got the money. Default judgment was obtained against the company. The company then filed an application to set aside the default judgment. The judge commented …

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Dimitrovski v Australian Executor Trustees [2013] NSWSC 337

This was “a last ditch attempt by the executor to save a valuable family asset” according to the judge. The lender had claimed possession of secured land because the executors of a deceased estate were in default under the mortgage. The court had given the lender possession in May 2011 by default judgment. However the …

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Leppa v ANZ [2012] SASC 81

At the hearing on that day, the borrower informed the Master that he had lodged a complaint with the Financial Ombudsman. Acting on that assertion, the judge adjourned the hearing so as to allow the Financial Ombudsman to address the dispute. However, ANZ filed an affidavit which recorded communications between its lawyers, on the one …

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Avery v Saree Holdings [2012] NSWSC 463

The founder of a company arranged for his co-director to loan his defacto funds to purchase an apartment and a mortgage was given over the apartment in favour of the co-director. The loan went into default and possession proceedings were commenced. The defacto settled the proceedings but later sought to set aside judgment for possession …

Avery v Saree Holdings [2012] NSWSC 463 Read More »

Butler v Vavladelis [2012] VSC 186

The lender obtained orders for possession of the house of elderly Greek pensioners. They now apply to have the judgment set aside on the basis that their signature on the mortgage was a forgery by their daughter. Failure to appear and delay issues The court found that the failure of the parents to file an …

Butler v Vavladelis [2012] VSC 186 Read More »

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