BankWest v Callipari [2011] NSWSC 138

There were delays by the borrower in filing a defence. Eventually the proceedings were set down for hearing with an order that the borrower file a defence and evidence in the mean time. The borrower did not comply.

Two applications for an adjournment were made and denied. A further application was made after the lender had read its evidence at trial. On this occasion a day was allowed for the filing of a defence and evidence. No defence was filed and a further adjournment application was made, this time with legal representation.

Justice Garling noted the range of matters to be considered in such an application including:

  1. Public confidence in the judicial system;
  2. Appropriate use of judicial resources;
  3. The presence of irreparable unfair prejudice in unnecessarily delaying proceedings;

The borrower argued it had a defence based on breach of the Trade Practices Act 1974. However the Judge found the borrower could not describe its defence with sufficient clarity, and had had sufficient opportunity to do so. Further, it was likely the lender would suffer a shortfall. Therefore, the Judge noted:

An adjournment now would not further the overriding purpose set out in s 56 of the Civil Procedure Act and BankWest would suffer irremediable prejudice by an adjournment. In all of those circumstances, I am not satisfied that it is in the interests of justice to adjourn this hearing.

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