Saunders v RHG Mortgage Corporation Limited

BEAZLEY P: On 12 August 2016, the applicant filed a summons seeking leave to appeal from an interlocutory order made by Harrison AsJ on 6 July 2016 dismissing the applicant’s notice of motion to set aside default judgment entered in favour of the respondent on 2 December 2015.

In Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2014] NSWCA 151 I explained that appeals from an Associate Judge lie to a Judge in a Division of the Supreme Court. The proceedings in this case were thus irregularly commenced although the appeal itself is competent.

Both parties have requested this Court not to exercise its powers pursuant to the Supreme Court Act 1970 (NSW), s 51(2)(b) to remit the matter to the Common Law Division of the Supreme Court.

In brief, the principal arguments advanced as to why the matter ought not be remitted were as follows.

First, before it came to the attention of the Court that the appeal ought to have been brought in the Common Law Division, a direction had been given for the concurrent hearing and 30 November 2016 had been allocated as the date for hearing.

Secondly, the applicant has been evicted from his home as a result of an order for possession having been made.

Thirdly, the respondent has been restrained from selling the property pursuant to an order made by Garling J on 25 July 2016.

Next, it was a condition of ordering a stay on the sale of the property that the applicant make regular payments to the respondent and that his appeal be prosecuted expeditiously.

Finally, a question arises as to whether the National Credit Code applies and, if so, its proper construction.

In my opinion, the various matters raised by the parties in their submissions are such as to warrant the matter remaining in this Court. Accordingly, I decline to remit the matter to the Common Law Division pursuant to s 51(2)(b). The hearing date of 30 November 2016 is confirmed.