Abram, J. and Anor. v Bank of New Zealand

[1993] FCA 269

JUDGMENT No. ........ ........ .. .....,,,,,,. 2b9 11193

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 4 2 of 1993

)

GENERAL DIVISION )

BETWEEN: JOSEPH ABRAM AND

JANETTE DAWN ABRAM

Applicants

AND :  BANK OF NEW ZEALAND

First Respondent

DAVID TIETJEN

Second Respondent

VANESSA DIKKENBERG

Third Respondent

MICHAEL J FITZPATRICK

Fourth Respondent

JtEGE W I N G ORDERS:  FOSTER J

DATE :	2 4 FEBRUARY	1993
PLACE :	SYDNEY

MINUTE OF ORDES ___I-.

THE COURT ORDERS THAT:

be returnable on 10 March 1993.

1.    The first and third respondents file and serve a statement of defence by 4.00pm 26 February

1993. Service may be by facsimile.

2.  The applicants' interlocutory application and the first and third respondents' notice of motion be adjourned to 10 March 1993.

3.   Leave be granted to the fourth respondent to file and serve a notice of motion and supporting affidavits, the notice of motion to

4.    The first respondent take no steps to interfere with the applicants' possession of the subject property up to and including 4.00pm 10 March 1993.

5.   The applicants' undertaking as to damages be noted.

-* Note- Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 42 of 1993

)

GENERAL DIVISION )

BETWEEN: JOSEPH ABRAM AND

JANETTE DAWN ABRAM

Applicants

AND :  BANK OF NEW ZEALAND

First Respondent

DAVID TIETJEN

Second Respondent

VANESSA DIKKENBERG

Third Respondent

MICHAEL J FITZPATRICK

Fourth Respondent

CORAH:	FOSTER J
DATE :	24 FEBRUARY 1993
PLACE :	SYDNEY

REASONS FOR JUDGMENT

(Extempore)

HIS HONOUR: I will grant leave to Dr Flick to file the

notice of motion and supporting affidavit in Court and I understand that copies of those are now being served or can be served. I accept the situation that M r Abram being unrepresented needs some time to consider the notice of motion and the supporting affidavit. I am, I think, tolerably clear from what has been put to me as to what the defences will be to the statement of claim in G 42 of 1993, in so far as that statement of claim relies upon the service of a particular notice under s 57(2)(b) of the Real ProDertv Act in relation to a debt in an account referred to as the Smarter Account in paragraph 3.

The notice is to be withdrawn and not to be relied upon in relation to that debt; in other words, the mortgage in respect of which the notice is given is not - and this is without admissions to be relied upon - to be relied upon as being security for that particular debt. To that extent a large number of the assertions in the statement of claim no longer will have any basis. There are other assertions in the statement of claim, however, which relate to the execution of the mortgage in relation to other debts. Those debts are not referred to in the statement of claim but clearly enough have been the subject of other proceedings. The result of those other proceedings is to be relied upon by way of estoppel .

At the present moment, the issues raised by the reluctance and hesitation, that because the applicants are not	statement of claim have not been refined to the point that	they would be if a defence were filed. I think, with some
legally represented and for that reason may reasonably be understood not to have grasped with total clarity what has been said by way of the indication or adumbration of defences to be filed with the statement of claim, that it is appropriate that a document being a statement of defence be filed so that the applicants and the Court will have the benefit of the issues being sharply and clearly drawn. From what I have been told by counsel for the respondents, there would seem to be little difficulty in that being done quite quickly.
The defence should be filed and served and I indicate that service should be accepted of the statement of defence by 4.00 pm on Friday next, 26 February.
I am satisfied that the applicants do need further time. I do not think any large amount of time should be granted for them to consider this notice of motion and the affidavit and their position in relation to the withdrawal of the s 57(2)(b) notice.
The question of interlocutory relief until 10 March 1993 has been agitated before me. It has been put to me forcefully on behalf of the first respondent that I should not grant that relief up to and including that day. I appreciate
what has been put to me. It is a matter of exercise of the
discretion in the Court. Apart from general prejudice relating to the fact that this matter and related matters have been in existence for some considerable time, no matter of particular prejudice is put.
I think in all the circumstances, exercising a discretion which I regard myself as having, I will make an order in the same terms as the interlocutory injunction granted by his Honour Mr Justice Einfeld, restraining the bank from dealing with the property under the mortgage up to and including 4.00pm on Friday 10 March.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate:

Date :	24 FEBRUARY 1993
A P P E A R A N C E S

THE APPLICANTS APPEARED IN PERSON

COUNSEL FOR THE FIRST AND THIRD RESPONDENTS:

DR G.A. FLICK Q.C.

INSTRUCTED BY:  CLAYTON UTZ

COUNSEL FOR THE FOURTH RESPONDENT:	MR T.H. BARRETT
INSTRUCTED BY:	CHAMPION S PARTNERS

DATE OF HEARING:	24 FEBRUARY 1993
DATE A F JUDGMENT:	24 FEBRUARY 1993