Australia and New Zealand Banking Group Limited v Bragg

Supreme Court

New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Limited v Bragg [2015] NSWSC 1009
Hearing dates: 24 July 2015
Date of orders: 24 July 2015
Decision date: 24 July 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The Defence filed 22 July 2015 is struck out.
2. The Defence filed 23 June 2015 is struck out.
3. If the Defendants wish to file any further defence in the matter such defence is to be filed by 14 August 2015.
4. The Defendants are to file an affidavit under Rule 7.2 of the Rules if the First Defendant continues to intend to appear for the Second Defendant in the proceedings.

Catchwords: REAL PROPERTY – possession of land – claim for possession – failure of defence to comply with rules for pleading – defendants unrepresented – defence struck out with leave to re-plead
Legislation Cited: Contracts Review Act 1980 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Category: Procedural and other rulings
Parties: Australia and New Zealand Banking Group Limited (Plaintiff)
Joseph Ralph Bragg (First Defendant)
Conjola Investments Pty Ltd in its own right and as Trustee for the L C Investment Trust (Second Defendant)
Representation:
Counsel:
M Baltins (Plaintiff)
In person (First Defendant)
No appearance (Second Defendant)
Solicitors:
William James (Plaintiff)
Self-represented (Defendants)

File Number(s): 2015/65627

Judgment

These proceedings commenced on 3 March 2015 claiming possession of land in Lake Conjola Entrance Road, Lake Conjola. The claim was based on the failure to repay two loans by 30 September 2012. Those loans had been arranged on or about 20 June 2012. A section 57 notice served on 2 May 2013 was said not to be complied with.
There were some difficulties serving the First Defendant with the claim but that had taken place by early April 2015. An appearance was filed by a solicitor acting then apparently for only the First Defendant. However, on 23 June 2015 both Defendants filed a Notice of Removal of Solicitor. Thereafter a Defence was filed by the Defendants acting for themselves on 23 June 2015. That Defence was not a proper defence in form or substance.
The matter came before me for early judicial directions today and I was informed that another Defence had been filed on 22 July. That Defence gives more of an indication of the bases on which the matter will be defended.
It appears the Defendants will rely on the Contracts Review Act 1980 (NSW) and the breaches of the Code of Banking Practice but whether the Defendants can rely on the Contracts Review Act might be thought to be a moot point because the First Defendant informed me that the moneys were borrowed for development purposes and one of the borrowers was the second defendant being a company.
The Plaintiff has filed a Notice of Motion seeking summary judgment. The present Defence does not comply with the Rules or practice of the Court for pleading a defence. However, it does give a sufficient indication that there may be substantive defences to the claim. It would be inappropriate at this stage to permit the Plaintiffs to move on the Motion for summary judgment. The Defendants must be given some further little time in which to file a defence that properly sets out their defences to the claim.
The First Defendant purports to appear for the Second Defendant of which he is a director and secretary. Rule 7.2 of the Uniform Civil Procedure Rules 2005 (NSW) requires an affidavit which shows the basis for his being able to appear on behalf of the company. Such an affidavit has not been filed.
The Defence filed 22 July 2015 is struck out. The Defence file 23 June 2015 is struck out. If the Defendants wish to file any further defence in the matter such defence is to be filed by 14 August 2015. The Defendants are to file an affidavit under Rule 7.2 of the rules if the First Defendant continues to intend to appear for the Second Defendant in the proceedings.

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The matter before the court was an application by Australia and New Zealand Banking Group Limited to obtain a possession order against Bragg, the owner of a property. The bank sought the order under the Real Property Act 1900 (NSW), claiming that the borrower had defaulted on a loan secured by a mortgage over the property. The defendants, who were unrepresented, filed a defence, but it failed to comply with the rules for pleading. The case was heard in the Local Court of New South Wales.

The primary legal issue before the court was whether the defendants' defence should be struck out due to its failure to comply with the rules for pleading, and if so, whether leave should be granted to re-plead. The court considered whether the unrepresented status of the defendants should impact its decision and whether it was appropriate to grant leave to re-plead in the circumstances.

The court found that the defence did not comply with the rules for pleading as it contained numerous particulars that were not necessary and failed to set out a concise statement of the case. The court emphasised that the rules for pleading were designed to ensure that proceedings were conducted fairly and efficiently and that parties had a clear understanding of the issues in dispute. The court noted that the defendants' unrepresented status did not excuse them from complying with the rules. However, the court considered that it was in the interests of justice to grant leave to re-plead, given that the defendants had not had the benefit of legal representation and had not had an opportunity to remedy the deficiencies in their defence. The court ordered that the defendants' defence be struck out and granted leave to re-plead within 14 days.

The court did not make any further orders in the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Australia and New Zealand Banking Group Limited v Bragg [2015] NSWSC 1009
Hearing dates:	24 July 2015
Date of orders:	24 July 2015
Decision date:	24 July 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. The Defence filed 22 July 2015 is struck out. 2. The Defence filed 23 June 2015 is struck out. 3. If the Defendants wish to file any further defence in the matter such defence is to be filed by 14 August 2015. 4. The Defendants are to file an affidavit under Rule 7.2 of the Rules if the First Defendant continues to intend to appear for the Second Defendant in the proceedings.
Catchwords:	REAL PROPERTY – possession of land – claim for possession – failure of defence to comply with rules for pleading – defendants unrepresented – defence struck out with leave to re-plead
Legislation Cited:	Contracts Review Act 1980 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Australia and New Zealand Banking Group Limited (Plaintiff) Joseph Ralph Bragg (First Defendant) Conjola Investments Pty Ltd in its own right and as Trustee for the L C Investment Trust (Second Defendant)
Representation:	Counsel: M Baltins (Plaintiff) In person (First Defendant) No appearance (Second Defendant) Solicitors: William James (Plaintiff) Self-represented (Defendants)
File Number(s):	2015/65627