ANZ v Hancock
[2013] NSWSC 441
•29 April 2013
Supreme Court
New South Wales
Medium Neutral Citation: ANZ v Hancock [2013] NSWSC 441 Hearing dates: 29 April 2013 Decision date: 29 April 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave to the Plaintiff to move for default judgment.
(2) Leave to the Plaintiff to issue a writ of possession forthwith.
Catchwords: PROCEDURE - adjournment - claim for possession - one defendant bankrupt - other defendant with no defence to claim - adjournment sought until after application for review of sequestration order is heard - delay in pursuing review - adjournment refused. Category: Interlocutory applications Parties: Australia and New Zealand Banking Group Ltd (Plaintiff)
John Leslie Hancock (First Defendant)
Heather Rahn Wilson Hancock (also known as Heather Wilson Hancock (Second Defendant)Representation: R Lewin (Plaintiff)
P B Raupach (Second Defendant)
Solicitors:
Gadens Lawyers (Plaintiff)
Russo & Partners (Second Defendant)
File Number(s): 2012/29681
Judgment
These proceedings first came before me on 7 December 2012. It was suggested at that time that a complaint had been made to the Financial Ombudsman Service, and for that reason the matter was adjourned until 5 February 2013. On that day I was informed that the First Defendant, Mr John Hancock, had been made bankrupt on 21 December 2012 on the petition of the Australian Tax Office.
The proceedings in this Court had been commenced on 24 January 2012 alleging a default on 2 November 2011. In the Defence, filed on behalf of both Defendants, although the default was not admitted, the reason for the difficulties in which the Defendants found themselves was said to be that there had been a serious fire at the premises on 18 February 2011 and there had been problems in relation to the insurance. The result was, however, that the Defendant defaulted under the loan and did not rectify the default.
The Defence, itself, did not identify any defence known to the law to the claim that the Plaintiff made. However, as the Second Defendant had only instructed a new solicitor that morning I stood the matter over to 14 February to enable proper instructions to be taken from the Second Defendant.
The proceedings came again before me on 14 February 2013 and I was informed at that time that Mr Hancock had made application to review the Registrar's decision, making a sequestration order against his estate. The hearing of that review was to take place on 23 April 2013. Mr Raupach, the new solicitor for the Second Defendant, informed me that Mrs Hancock
did not have any defence to the claim. Accordingly I struck out the Defence filed 25 October 2012. The matter was adjourned to 7 March to enable instructions to be given about the disposition of the property.
On 7 March 2013 I was informed that Mrs Hancock was proposing to sell the property and that she did not intend to file an amended defence. It was proposed that the property be listed at some reasonable time after 7 March. On that occasion I adjourned the proceedings to today for two purposes. The first was to see what the result of Mr Hancock's application to review the sequestration order would be, and secondly, to see what progress had been made in relation to the sale of the property.
The matter has come before me this morning and I have been informed that the application for review in the Federal Circuit Court has been adjourned to 1 July 2013. I have been provided with orders made by that Court on 17 April. Those orders relevantly first note an undertaking by Mr Hancock to provide the Official Trustee in Bankruptcy with his Statement of Affairs within seven days. That is an indication that the Statement of Affairs, which ought to have been provided by Mr Hancock by no later than the end of January 2013, had not been lodged.
Secondly, the orders provided that the Applicant, Mr Hancock, was to file and serve any affidavit evidence in support of his application by 17 May. There was a subsequent order for the further service of evidence by the other party and then Mr Hancock was directed to pay the petitioning creditor's costs of the directions hearing on 17 April. The notation about the Statement of Affairs, the order in relation to the service of the affidavit evidence and the costs order are clear indications that the reason the matter did not proceed on 17 April was by reason of Mr Hancock's defaults.
I have been informed by Mrs Hancock's solicitor today that she has not been able to further the sale of the property because the official trustee has placed a caveat on the property.
In all of these circumstances, a further adjournment is sought by Mrs Hancock to a date after 12 July 2013 to see the result of Mr Hancock's application for review. If that application is successful, there is a suggestion, but nothing more, that some steps may be able to be taken to refinance or otherwise satisfy the debt owing to the Plaintiff.
It does not seem to me appropriate that the matter ought to be adjourned any further by reason of the delay in hearing Mr Hancock's application for a review of the making of the sequestration order. As it is, a delay of almost three months has been incurred, it would seem, as a result of Mr Hancock's inaction, coupled with the fact that Mrs Hancock accepts that she has no defence to the claim and that, in the present circumstances, at least the property needs to be sold. She was in the process of doing that but became prevented by the trustee's caveat.
In all the circumstances, it does not seem appropriate that the Plaintiff should be delayed another two and a half months to suit the outcome of Mr Hancock's application in the hope that at some time after that, if it is successful, some arrangements may be made to pay out the debtor to have it refinanced. Mrs Hancock is not able to offer anything in that regard except the sale of the property in respect of which she has now been thwarted.
The fair approach to me is to permit the Plaintiff to proceed to default judgment and to exercise its remedies which will not, in the same way, be thwarted by the trustee's caveat. In those circumstances, the application for a further adjournment is refused.
On 7 March 2013 I gave leave to the Plaintiff to obtain default judgment. The Plaintiff filed for default judgment on 12 March 2013. It has not yet been granted and the Plaintiff's solicitors were informed that that was because the Registry was waiting the outcome of today's directions hearing. I do not understand why the Registry has adopted this course when I gave leave on 7 March 2013 for the Plaintiff to obtain default judgment. I intend to make some inquiries in that regard.
The Plaintiff is again given leave to obtain default judgment and to issue a writ forthwith to enforce the judgment of the Court. Liberty to the parties to apply to me on two days' notice.
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Decision last updated: 30 April 2013
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