In what circumstances can a judgment for possession of land be set aside … …
On 22 June 2015, RHG Mortgage Corporation Limited (“RHG”) entered judgment for more than $400,000 and later obtain a writ for the possession of the land owned by Brian and Catherine Summerfield (“borrowers”).
The borrowers filed a Notice of Motion in the Supreme Court of NSW to set aside the judgment and be granted leave to defend the action for possession of the land that had been commenced by RHG.
The loan was entered into in 2002 and the borrowers fell into arrears in 2013. After this default RHG sued for possession and recovery of the money owing. This action was settled on the basis that the borrowers pay $51,544 towards arrears immediately, that they pay $24,978 in payment of the costs of RHG and lastly that they make their regular payments. The $51,544 was paid and the fortnightly payments were made.
In 2015, RHG again sued the borrowers claiming that they had missed some of the fortnightly payments. This was not the case although they had not paid the $24,978 that they had earlier agreed to pay on account of costs.
RHG obtained judgment against the borrowers.
When Brian Summerfield realised in September 2015 that a writ for possession had been entered he contacted RHG and was told that the only way to stop the writ of possession was to pay $7,000 immediately. He did this and the writ for possession was stopped.
The borrowers then filed the Notice of Motion to set aside the writ and for leave to defend the claims made by RHG.
At the hearing of the Notice of Motion it was agreed that the borrowers had never defaulted on the fortnightly payments. The claim made by RHG arose because of an auditing error. This in turn satisfied the requirement that a defence was available to the claim.
In order for the borrowers to succeed in their Notice of Motion to set aside the judgment, they had to explain the delay in taking action. Mr Summerfield denied knowing about the statement of claim and further gave evidence that his computer had become corrupted and therefore he did not see some of the important emails.This satisfied the court that there was an explanation for the delay in taking action to defend the claims made by RHG
Justice Adams held that it was in the interests of justice that the judgment be set aside and that the applicants be permitted to defend the claim made by RHG.
COVID-19 and its impact on the Courts.
The Federal Court, the Supreme Court and District Court of New South Wales continue to hear cases by video and telephone conference. However, Jury Trials have been suspended.
A number of parties have applied for an adjournment of proceedings because of the COVID-19 pandemic but the Courts have refused these applications on the basis that the parties are not prejudiced by having proceedings heard on video conference or telephone conference.
At Jackson & Associates, Solicitors we have adapted to this new court environment and continue to represent the interests of our clients when the need arises.