Australia and New Zealand Banking Group Limited v Bragg
[2015] NSWSC 1009
•24 July 2015
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:
Solicitors:
M Baltins (Plaintiff)
In person (First Defendant)
No appearance (Second Defendant)
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.
**********
Decision last updated: 24 July 2015
1
0
2