ANZ v Christie
[2014] NSWSC 306
•21 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: ANZ v Christie [2014] NSWSC 306 Hearing dates: 21 March 2014 Decision date: 21 March 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence dated 13 January 2014 struck out.
2. Plaintiff granted leave to move for default judgment.
3. Leave to the Plaintiff to issue a writ of possession such writ not to be executed before 19 May 2014.
Catchwords: REAL PROPERTY - possession of land - dispute only as to amounts owing - no defence to claim - defence struck out Category: Interlocutory applications Parties: Australia and New Zealand Banking Group Ltd (Plaintiff)
Stewart Wallace Christie (First Defendant)
Sheryl Anne Bayliss (Second Defendant)Representation: Counsel:
E Davies (Plaintiff)
In person (via telephone conference (Defendant)
Solicitors:
Gadens Lawyers (Plaintiff)
In person (Defendant)
File Number(s): 2013/360195
Judgment
These proceedings commenced on 29 November 2013 seeking possession of a property at 12 Bourke St Cowra and claiming amounts due under two facilities, an overdraft provided in June 2010 of just under $50,000 and a business loan provided at the same time of $221,000. Default took place in relation to the overdraft in February 2011 and under the business loan in November 2011. The amounts were secured by mortgage and a s 57 notice was served on 30 April 2013 however the amounts claimed as default were not paid.
The Defendant who acts for himself has filed a Defence filed 13 January 2014 the effect of which is that he agrees that he has defaulted under the mortgage but he disagreed with the amounts that were specified. He also complained in the Defence that the Plaintiff loaned the money without having his taxation details when that was what the contract between the Bank and him required.
When the matter came before me on 28 February Mr Christie said that he wished to seek some legal advice in the matter. It was for that reason that I stood the proceedings over to today. Mr Christie tells me today that he has received legal advice and that he does not intend to contest the Bank's claim made against him. He simply seeks a period of time so that he can relocate to other premises.
It does not appear to me that the defence discloses a defence to the Bank's claim, and it should be struck out. The Plaintiff is given leave to move for default judgment.
Mr Christie has sought some months to find other premises and for time to relocate. The Bank has offered six weeks but has said that it would not resist if I was minded to grant a further two-week period. I consider in the circumstances that it is fair to Mr Christie and his family that he should have a period of eight weeks to find other premises.
Accordingly the Bank is given leave to issue a writ of possession to enforce the judgment of the court but such writ is not to be executed before Monday 19 May. The orders that I make therefore are:
1. The defence of 13 January 2014 is struck out.
2. The Bank is given leave to obtain default judgment.
3. The Bank is given leave to issue a writ of possession such writ not to be executed before 19 May.
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Decision last updated: 01 April 2014
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