Australia and New Zealand Banking Group Limited v Bradbury

[2013] NSWSC 1164

Supreme Court

New South Wales

Medium Neutral Citation:

Australia and New Zealand Banking Group Limited v Bradbury [2013] NSWSC 1164

Hearing dates:

22 August 2013

Decision date:

22 August 2013

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. That the plaintiff have leave to file for default judgment;

2. That the defendants' cross-claim be struck out;

3. That the defendants bear the plaintiff's costs of the proceedings as agreed or assessed.

Catchwords:

PROCEDURE - possession - notice of motion - leave to file for default judgment - pleadings - cross-claim struck out - costs

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

Australia and New Zealand Banking Group Limited (Plaintiff)
Wayne King Bradbury (First Defendant)
Narelle Frances Bradbury (Second Defendant)
W Bradbury Nominees Pty Limited
ACN 008 928 401 (Third Defendant)

Representation:

Solicitors:
Ms B Athanasoulas
HWL Ebsworth Lawyers (Plaintiff)
No appearance (Defendants)

File Number(s):

2012/126416

Publication restriction:

None

EX TEMPORE Judgment

1. HER HONOUR: These proceedings were commenced by statement of claim filed in April 2012 when the plaintiff bank sought judgment against the first and second defendants in a sum in excess of one million dollars, together with interest, as well as judgment against the third defendant for a somewhat lesser sum, but still a sum in excess of one million dollars, plus interest.

1. There was a defence filed in July 2012, as well as a first cross-claim filed in October 2012 by the three defendants.

1. In March 2013 an amended statement of claim was filed. There has been no defence filed to the amended statement of claim.

1. The defendants were earlier represented but in June 2013 a notice of removal of solicitor was filed. When the matter came before me in August there was no appearance for the defendants in circumstances where it was apparent from an affidavit sworn by the plaintiff bank's solicitor, Ms Athanasoulas, on 31 July 2013 that they were aware of the proceedings. On that day leave was sought by the plaintiff to apply for default judgment and for orders dismissing or striking out the cross-summons.

1. In the circumstances I took the view that the plaintiff should move by way of notice of motion, so that the defendants would have a proper opportunity to appear to resist those applications if they wished.

1. In the result, on 12 August the plaintiff filed a notice of motion by which orders were sought under rule 4.28 of the Uniform Civil Procedure Rules 2005, that the cross-claim be struck out and in the alternative pursuant to Rule 12.7 that the cross-claim be dismissed for want of prosecution. That motion was supported by a number of affidavits sworn by Ms Athanasoulas. On 9 August 2013 she deposed to various communications with the defendants as to both the Bank's claim and their cross-claim. She there swore that as at the date of that affidavit, the first and second defendants remained indebted to the plaintiff in the amount of $1,228,639.07 with interest continuing to accrue. Further, that as at that date the third defendant remained indebted to the plaintiff in the amount of $1,216,136.21 with interest again continuing to accrue.

1. Correspondence annexed to the affidavit showed that the defendants were notified on 9 August of what had transpired on the last occasion and of the steps which the bank then intended to pursue. Advice was sought of the defendants as to whether they intended to prosecute their cross-claim.

1. In a further affidavit sworn on 21 August 2013 Ms Athanasoulas deposed that the defendants had been further approached to indicate as to whether they intended to appear to prosecute their cross-claim today. Annexed to this affidavit was email correspondence from the first defendant, which confirmed that they would not be attending court today.

1. In all of those circumstances I am satisfied that the defendants have been given ample opportunity both to defend the claim which the bank pursues against them and to prosecute their cross-claim. Being on notice of the orders which were to be pressed today, and having determined not to appear to oppose those orders, it is appropriate and accords with the requirements of s 56 of the Civil Procedure Act 2005 and the dictates of justice, that I now exercise the Court's discretion to make the orders which the bank presses. Accordingly, I order:

1. That the plaintiff have leave to file for default judgment.

2. That the defendants' cross-claim be struck out.

3. That the defendants bear the plaintiff's costs of the proceedings as agreed or assessed.

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Decision last updated: 22 August 2013