Hester v Commonwealth Bank of Australia

[2023] NSWCA 70

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Procedure
3. › Injunction pending appeal
4. › Application for leave to appeal
5. › Application for stay of judgment treated as application for writ of restitution
6. › Whether prospects of success on leave application
7. › Whether three-year delay satisfactorily explained
8. › Whether availability of alternative remedy fatal to leave application
1. Mortgages and Securities
2. › Mortgages
3. › Duties, rights and remedies of mortgagee
4. › Possession
5. › Default judgment for possession
6. › Writ of possession executed
7. › Whether writ of restitution should issue pending appeal
1. Civil Procedure
2. › Default judgment
3. › Setting aside
4. › Whether sufficient explanation for failure to file defence
5. › Whether sufficient explanation for delay in application to set aside
6. › Whether arguable defence on the merits
7. › UCPR r 39.2

Quick Take

The availability of an application to set aside a default judgment in the court below is, in itself, a complete answer to an application for leave to appeal from that default judgment.