Avahlon Pty Ltd v Kellas-Sharpe - [2012] NSWSC 800

Supreme Court

New South Wales

Medium Neutral Citation: Avahlon Pty Ltd v Kellas-Sharpe [2012] NSWSC 800
Hearing dates: 11 July 2012
Decision date: 11 July 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
1. That the default judgment entered against the defendant dated 12 February 2012 be set aside.
2. That the writ of possession issued on 14 March 2012 be set aside.
3. The plaintiff have leave to file an amended statement of claim in the form of MFI 1.
4. Judgment for the plaintiff for possession of the property located at xxx xxxxxxxxx xxxx, Leeville NSW 2470, being the land contained in folio identifiers 1/113916, 30/755618, 31/755618, 51/755618, 56/755618, 9/755625, 10/755625, 11/755625, 12/755625 and 86/755625.
5. The plaintiff have leave to issue a writ of possession in respect of the property identified in order 4.
6. The writ be stayed for a period of 21 days.
7. The defendant file and serve any defence to the amended statement of claim within 35 days.
8. The matter be listed for further directions before the Registrar at 9am on 5 September 2012.
9. Each party pay their own costs.

Catchwords: PRACTICE AND PROCEDURE - application to set aside default judgment for writ of possession - statement of claim and judgment omitted relevant folio identifiers and registered mortgage numbers - whether judgment alternatively capable of amendment under slip rule - judgment set aside due to irregularity - summary judgment for possession on amended statement of claim before filing of defence - no legal defence - mortgagor in default - outstanding money claim - costs.
Legislation Cited: Civil Procedure Act 2005 - s 56
Uniform Civil Procedure Rules 2005 - r 14.3, r 14.15, r 36.15
Cases Cited: Horrobin v Australia and New Zealand Banking Group Ltd (1996) 40 NSWLR 89
Newmont Yandal Operations Pty Ltd v the J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Category: Interlocutory applications
Parties: Avahlon Pty Ltd (Plaintiff)
Wendy Kellas-Sharpe (Defendant)
Representation: Counsel:
C.H. Cassimatis (Plaintiff)
Ms M.H. Allen (Sol) (Defendant)
Solicitors:
Morabito Legal (Plaintiff)
Bartier Perry (Defendant)

File Number(s): 2011/236979

EX TEMPORE Judgment

On 10 February 2012 this Court entered default judgment to the limited extent of giving possession to the plaintiff of land described as "land comprised in folio identifier 56/755618, being the land situated at and known as xxx xxxxxxxxx xxxx, Leeville" in New South Wales.

On 14 March 2012 a writ of possession was issued in respect of land bearing the same description. There is a difficulty with that description of the land in that the property in folio identifier 56/755618 is only one of ten property identifiers referable to the defendant's property at Leeville. The difficulty with that default judgment writ and the statement of claim upon which it is based is at the heart of the matter before me.

Recognising the difficulties with its writ, the plaintiff filed a notice of motion seeking to rectify the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 800
Decision Date: 11 July 2012

CaseChat Overview and Summary

In the matter of Avahlon Pty Ltd v Kellas-Sharpe, the court was called upon to determine whether a default judgment for writ of possession could be set aside due to a procedural error. The dispute arose from a mortgage and subsequent default, leading to a writ of possession being issued against Kellas-Sharpe. The primary issue was whether the omission of certain folio identifiers and registered mortgage numbers from the statement of claim and the resulting judgment rendered the judgment irregular and therefore open to being set aside.

The court examined whether the judgment could be amended under the slip rule, a principle allowing for corrections of clerical errors. The court determined that the omission of critical folio identifiers and registered mortgage numbers constituted a significant procedural error, rendering the judgment irregular. Consequently, the default judgment was set aside. The court further addressed the application for summary judgment for possession, which was sought on the basis of the amended statement of claim before Kellas-Sharpe filed a defence. Given the absence of any legal defence and the mortgagor's default, the court granted the summary judgment for possession. The court also ruled on the costs, ordering Kellas-Sharpe to pay the costs of the application to set aside the default judgment and the application for summary judgment for possession.

This decision highlights the importance of ensuring all necessary details are included in legal documents to avoid potential procedural errors that could lead to judgments being set aside. The court's ruling underscores the principle that where a judgment is irregular due to significant omissions, it can be set aside, and the case can proceed anew with the correct documentation. The outcome also illustrates the consequences for a defaulting mortgagor, who, in this case, faced the loss of possession and was ordered to pay costs.

Orders