Lawteal v Ofo [2005] NSWSC 984

The lender obtained default judgment for possession after the borrower fell into arrears. The borrower then filed a motion seeking a stay and to set aside the default judgment.  The hearing of the motion came before a Registrar and it soon became apparent there were no grounds for setting aside the default judgment with the borrower’s barrister advising the court:

She seeks to stay the default judgment. She seeks to re-finance the property. She is looking for another job. Her son is looking for a job and she is asking if the Court might grant her a period of six months in order to arrange that.

The Registrar then made orders dismissing the motion but granting an interim stay while asking for the borrower to file evidence of a refinance. The borrower then sought a review of the Registrar’s decision to dismiss the motion. However in the course of the review it became apparent that the borrower was attempting to put into evidence fresh material that had not been available to the Registrar. The court rejected this and confined itself to considering whether the Registrar erred on the basis of material before him at the time he made his decision.

The court held that the reason the Registrar decided as he did was:

The defendant decided not to proceed with that application. That decision was made after having received advice from her legal representatives. It was this decision that led to the making of the dismissal order.

Accordingly, the Registrar’s decision was not disturbed and the default judgment remained in place.

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