Australia and New Zealand Banking Group Limited v Spring Hill Beef Pty Ltd

[2014] NSWSC 1517

Supreme Court

New South Wales

Medium Neutral Citation:

Australia and New Zealand Banking Group Limited v Spring Hill Beef Pty Ltd [2014] NSWSC 1517

Hearing dates:

30 October 2014

Decision date:

30 October 2014

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

(1) The defendants' amended defence be struck out.

(2) That the cross-claim be dismissed.

Catchwords:

PROCEDURE - possession of land - inactive defendants - defence struck out - cross-claim dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Australia and New Zealand Banking Group Limited ACN 005 357 522 (Plaintiff)
Spring Hill Beef Pty Ltd
ACN 145 860 715 (First Defendant)
Simon John Philp (Second Defendant)

Representation:

Solicitors:
Ms E Davies
Gadens Lawyers (Plaintiff)

File Number(s):

2013/294200

Publication restriction:

No

EX TEMPORE Judgment

1. HER HONOUR: In this matter the plaintiff today seeks orders striking out the second and third defendants' amended defence and dismissing their cross-claim.

1. That application is made in circumstances where, it seems, those defendants have become inactive in the proceedings. At one point they were legally represented, but their former representative filed a notice ceasing to act on 30 September 2014.

1. In June 2014, the defendants were given leave to file an amended defence and amended cross-claim and directions were given as to the service of their evidence. Those directions were not complied with and the matter again came into the list on 1 October, when there was no appearance for the defendants, although there was a communication then received from the second defendant about a difficulty which had arisen, which had prevented him from appearing that day, as the result of a change in the listing.

1. On 1 October, accordingly, further orders were made to give the defendants an opportunity to file and serve an amended defence and cross-claim and their evidence. Those orders were that the second and third defendants file and serve any amended defence and cross-claim on or before 7 October and that they serve any evidence either in reply to the plaintiff's evidence or in chief on the cross-claim on or before 7 October.

1. Those orders and directions were also not complied with. In the result, on 17 October, the plaintiff wrote to the defendants advising that they would seek to have the matter re-listed and that on that occasion the plaintiff would make an application for their amended defence to be struck out and the cross-claim dismissed. There was no response to that correspondence and no appearance for either defendant today.

1. The plaintiff, in the face of that history, pressed orders under r 12.7.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the amended defence and cross-claim to be struck out and dismissed. The parties and the court have obligations under s 56 of the Civil Procedure Act2005 (NSW), which specifies the overriding purpose of the Act and of rules of court, to be, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

1. The section obliges the Court to give effect to the overriding purpose when it exercises any power given to it by the Act or by rules of Court. It also imposes a duty on parties to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the court.

1. These proceedings were commenced by statement of claim of 27 September 2013. In the circumstances it is apparent that the defendants have become inactive. They have not appeared to defend the plaintiff's claims or to pursue their own, they have not complied with the Court's orders and directions despite having been given a final opportunity to do so on 1 October, and they have not appeared to defend the plaintiff's application today, despite having been given notice of that application.

1. In those circumstances, I am satisfied that justice requires that the orders that the plaintiff seeks now be made.

Orders

1. Accordingly, I order that:

(1)   The defendants' amended defence be struck out.

(2)   That the cross-claim be dismissed.

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Decision last updated: 03 November 2014