Dimitrovski v Australian Executor Trustees [2013] NSWSC 337

This was “a last ditch attempt by the executor to save a valuable family asset” according to the judge.

The lender had claimed possession of secured land because the executors of a deceased estate were in default under the mortgage. The court had given the lender possession in May 2011 by default judgment. However the case had been delayed since that time and the court had stayed the order for possession while the executors tried to sell the property themselves. Finally, the executors asked the court to set aside the order for possession that had been entered in May 2011. The basis of this application was that one of the executors now believed he had a defence to the original claim for possession because he contended the mortgage was invalid.

The law about setting aside judgments or orders of the Court is that the judgment or order must have been obtained irregularly, illegally or against good faith – this is focused on the steps and the process by which judgment is obtained, not the correctness of the decision that was made.

The judge decided that, although the executor now had found an arguable defence (he was arguing that the mortgage was executed in contravention of the Powers of Attorney Act 2003), it should have been raised before judgment for possession was given.

The judge stated that the power to set aside the judgment was confined to the process by which it was given, entered or made. He confirmed that public policy and the interests of the litigants require finality to litigation.

The judge stated further that, even if he were satisfied there had been an irregularity, he would have refused the application in his discretion because: the lender had given ample notice of its claims before the judgment had been given; the lender had been put to exorbitant expense and considerable delay in getting possession; the defence could have been raised earlier; and there was no explanation from the executor about why he had not raised the defence earlier.

Click here to read the full judgment

Scroll to Top