CBA v Usalj [2011] NSWSC 63

At the hearing of this matter the guarantors sought an adjournment as they had not yet served their evidence. The adjournment was denied, the guarantors did not participate in the hearing, and the bank obtained judgment.

Four of the guarantors (the father, mother, sister and wife of the borrower) sought to have the judgment set aside. The bank argued that it would be inappropriate for the Court to allow parties who are unsuccessful in obtaining an adjournment of a trial to later be allowed to set aside judgment.

The Judge acknowledged it was a tricky one. However, he noted that as the mother and father had been overseas at the time of the trial, had difficulty understanding English (and therefore did not understand what had been happening in the proceedings) he could make an exception. Another factor influencing him was that they left it to their son and he misled them into believing that their case was being prepared and they had nothing to worry about.

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