The loan was secured by the parents’ property. The bulk of the funds were paid directly to the son. The bank obtained default judgment and the parents sought to set it aside claiming that the son forged their signatures on and that the father was not even in the country at the time. A draft defence and cross-claim were before the Court.
The parents excuse for not previously filing a defence because they spoke and read little English and did not understand the statement of claim. The bank did not take steps to enforce the judgment for two years because the parents were making payments. When they ceased making payments and received the writ of possession the parents immediately sought legal advice.
The Judge was therefore satisfied that the parents had explained the delay in not filing the defence or making the application to set aside judgment. His Honour also accepted that there was a triable issue to be determined and is required in depth assessment of the evidence.
Default judgment was therefore set aside and leave to file the defence and cross-claim granted.