Asil Foundation (Lending) Pty Ltd v Langridge

[2019] NSWSC 61

Supreme Court

New South Wales

Medium Neutral Citation:

Asil Foundation (Lending) Pty Ltd v Langridge [2019] NSWSC 61

Hearing dates:

31 January 2019

Date of orders:

31 January 2019

Decision date:

08 February 2019

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1)   The defendants are to provide a letter by email to the solicitors acting for the plaintiff by 5 pm today identifying with precision any or all documents required by them.

 

(2)   The solicitor for the plaintiff is to provide the documents sought by 5 pm on Friday, 1 February 2019.

 

(3)   The first and second defendants are to file and serve their Defence by 5 pm on Tuesday, 5 February 2019.

 

(4)   The first and second defendants are to serve any evidence upon which they intend to rely by 5 pm on Tuesday, 5 February 2019.

 

(5)   The parties have liberty to approach the Registrar on 24 hours’ notice.

 

(6)   The hearing date of 11 February 2019 is confirmed.

 (7)   The question of costs is reserved.

Catchwords:

POSSESSION – adjournment – vacation of hearing date – application refused

Category:

Procedural and other rulings

Parties:

Asil Foundation (Lending) Pty Ltd (Plaintiff)
Harold John Langridge (First Defendant)
Tanya Jane Linhart (Second Defendant)

Representation:

Counsel:
Mr D Allen (Plaintiff)
In person (First Defendant

  Solicitors:
Kekatos Lawyers (Plaintiff)
In person (First Defendant)

File Number(s):

2017/367883

Publication restriction:

Nil

Judgment

1. Sitting as Duty Judge an urgent application came before me by way of a Notice of Motion filed on behalf of the first and second defendants.

2. That Notice of Motion sought a vacation of the hearing date set down for 11 February 2019, as well as extension of time for the defendants to file a Defence, plus orders for a “new timetable”.

3. The background to the matter is that the plaintiff commenced proceedings for possession. On 1 August 2018, default judgment was entered in the sum of $618,795.73 and an order that the plaintiff have judgment for possession was also entered, together with leave for the issue of the writ of possession.

4. On 24 September 2018 the first and second defendants were granted a stay for the writ of possession in respect of the property which was a unit at 61 Kangaroo Street, Manly. Enforcement of the default judgment and of the possession that had been entered on 1 August 2018 was stayed pending further order of the court.

5. Mr Allen of Counsel who appeared before me today for the plaintiff informed me that the negotiated orders made and entered on 24 September 2018 were based upon and to an extent dependent upon the first and second defendants’ agreement to a timetable progressing the matter swiftly to a hearing date.

6. An affidavit of Harold Langridge sworn 20 September 2018 relied upon in support of the stay then sought, set out a number of things including that he had not been served with the Statement of Claim and was unaware of the orders for possession that had been made on 1 August 2018.

7. An accommodation was reached and consent orders formed the basis of the orders made by Justice Wilson on 24 September. One of the orders gave the parties liberty to approach the Registrar that day to obtain a date for hearing. I am informed that date for hearing was then fixed for 11 February 2019.

8. The affidavit Mr Langridge relies upon today, sworn 12 December 2018, explained that he needed more time to prepare and file a Defence. One of the reasons he cites for that is that his legal representative ceased to act for him on 24 October 2018. He said that he also required information to prepare the Defence and had “requested that information from his previous counsel but only received the information on the afternoon of 10 December 2018”.

9. He said in the affidavit that he wanted an extension until 30 January 2019 to file the Defence because there were a “significant number of documents he needed to collate to review and present to the court and he needed to get those from multiple parties and that he had already started that process”.

10. He noted that he wanted the court to vacate the 11 February 2019 hearing and provide a new timetable to accommodate his request for an extension to file the Defence.

11. Mr Langridge appeared for himself today. The plaintiff opposed the vacation of the hearing date, counsel noting the court ought not vacate or postpone a hearing simply because an errant party had failed to file the necessary defence. A defence has never been filed in the proceeding, although one was appended to the affidavit of Mr Langridge that supported the stay obtained in September 2017. It remains unclear why that Defence, obviously prepared by legal advisers, was not filed and could not be relied upon.

12. Mr Langridge told me from the bar table that he had been working on his defence and that it was “nearly ready” but he had found that he needed other documents. He then proceeded to refer to failures, as he perceived them, on the part of the plaintiff’s lawyers to provide documents sought in the past, although some of the documents he put into that category had clearly been sought and provided as shown in the affidavit of Gregory Huxley exhibit GH11 which comprised a bundle of loan and related documents and correspondence between Mr Langridge’s former solicitors and the plaintiff’s solicitors.

13. On a number of occasions during argument, Mr Langridge sought to outline in quite some detail what he said the defence was and what evidence he wished to put before the court as to why the plaintiff was not entitled to the judgment it had obtained.

14. Mr Langridge also was unable to identify any other legal representatives he had sought to assist him other than that he had made efforts he says to re-retain the lawyers who had previously acted for him whom, he said required him to pay some money before they would continue to act for him.

15. Mr Langridge had prepared an Amended Notice of Motion but not filed it and had provided it to the counsel for the defendant only in the few minutes before the argument proceeded before me. I did not grant leave for that amended motion to be filed in Court, nor was it sought to be filed.

16. To maintain the hearing date, particularly as a stay of execution was agreed to by the plaintiff in September 2018 on the basis of the matter progressing to finality with some alacrity to the February 2019 hearing date, I made orders with a view to maintaining the hearing date as follows:

1. The defendants are to provide a letter by email to the solicitors acting for the plaintiff by 5 pm today identifying with precision any or all documents required by them.

2. The solicitor for the plaintiff is to provide the documents sought by 5 pm on Friday, 1 February 2019.

3. The first and second defendants are to file and serve their Defence by 5 pm on Tuesday, 5 February 2019.

4. The first and second defendants are to serve any evidence upon which they intend to rely by 5 pm on Tuesday, 5 February 2019.

5. The parties have liberty to approach the Registrar on 24 hours’ notice.

6. The hearing date of 11 February 2019 is confirmed.

7. The question of costs is reserved.

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Decision last updated: 12 February 2019