Balanced Securities v Oberlechner [2007] NSWSC 80

The defendant borrowed $460,000 from the plaintiff, secured by mortgages over two properties. After the defendant defaulted the first property was sold. In these proceedings the defendant sought to have the default judgement for possession of the second property (the family home) set aside.

The defendant claimed to not have received the statement of claim or notice of the eviction, however Justice Simpson could find no evidence that service of the documents was improperly performed. In fact the evidence showed the plaintiff had been attempting to enforce its rights since April 2006.

His Honour noted the cases of Ex parte Vigilant Finance (NSW) Pty Ltd, Re Cameron Smith (1964) NSWR 1282, and Reinehr Industrial Lease and Finance Pty Ltd v Jordan, unreported, 4 June 1974 require three components to be present before default judgement to be set aside:

  1. an explanation for the failure to defend at the appropriate time;
  2. a good (arguable) defence on the merits;
  3. that it is in the interests of justice to allow the proposed defence to be litigated.

The defendant (representing himself) had not prepared a draft defence or orally formulate a defence. When specifically asked what defence he would be raising he referred to a high interest rate (which was a default interest rate) and made passing reference to the Contracts Review Act. It appeared as if the defendant was merely hoping for more time to organize alternative funds and when asked how he would afford the mortgage he responded that he would sell his car. Justice Simpson consequently found that the defendant had not raised any arguable defence and there was no basis for setting aside the default judgment.

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