Adelaide Bank v BMG Poseidon Corp [2008] NSWSC 68

In this case judgement was obtained by the Adelaide Bank for $1,028,725.29 after the borrower and two guarantors failed to enter an appearance. The debtors sought to have the judgement set aside with one of the guarantors, Mr Watts, arguing there were two grounds for defence if the judgement was set aside. These were:

  1. Hardship: entry of judgment should be delayed so as to enable him to get his affairs in order. He stated that he owns several properties and should have been given time to sell another property in order to pay his debt to the plaintiff.
     
  2. Unreasonableness: Mr Watts acknowledged that he signed each of the loan agreements but stated that he did not read the fine print. He did not dispute the bank’s contractual entitlement to the penalty charges accrued but maintained that the bank had behaved unreasonably in refusing to waive those charges at a later time. The gist of the complaint was that the plaintiff has not been as indulgent as many other lenders have been when he has been in default of other loans. He said that he has been investing in properties for 10 years and no other bank has done this to him.

Justice McCallum rejected both arguments and dismissed the application to set aside judgement

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