Belle Corp Equity Pty Ltd v Defined Properties Pty Ltd

[2016] NSWSC 1454

Supreme Court

New South Wales

Medium Neutral Citation:

Belle Corp Equity Pty Ltd v Defined Properties Pty Ltd [2016] NSWSC 1454

Hearing dates:

12 October 2016

Date of orders:

12 October 2016

Decision date:

12 October 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1.   Defence filed 13 July 2016 struck out.

 

2.   Any Amended Defence to be filed and served by 26 October 2016.

 3.   Any evidence on which Defendant intends to rely in response to Plaintiff’s Notice of Motion for summary judgment to be served by 26 October 2016.

Catchwords:

REAL PROPERTY – mortgages – possession of land – application for summary judgment – request for adjournment – defence disclosing no defence to the claim – defence struck out with leave to re-plead – adjournment granted

Category:

Procedural and other rulings

Parties:

Belle Corp Equity Pty Ltd (Plaintiff)
Defined Properties Pty Ltd (Defendant)

Representation:

Counsel:
A Rogers (Plaintiff)
G Dimitriou (by leave - Defendant)

  Solicitors:
Baccus Investments Ltd (Plaintiff)
Unrepresented (Defendant)

File Number(s):

2016/154403

Judgment

1. These proceedings commenced on 19 May 2016 claiming possession of land in Lexington Drive, Bella Vista. The basis of the claim for possession is default under a loan agreement and mortgage entered into on 11 March 2015.

2. The Statement of Claim discloses that there were breaches of the obligation to pay interest from August 2015 and breach of the obligation to repay the principal sum by 11 March 2016.

3. The Defence filed by the Defendant company on 13 July 2016 admits that the loan agreement and mortgage but disputes the defaults on this basis:

The Defendant denies para 6 and 6(a) of the claim. In further answer to those paragraphs, the Defendants say that, in respect of the obligations, an oral agreement was reached between the director of the Defendant company and the representative for the Plaintiffs. Further, for the obligation for interest payments have been made.

4. So stated, that paragraph is meaningless. It does not identify what the agreement was or how it impacts on the defaults which Mr Dimitriou, who has been given leave this morning to appear as director of the Defendant, accepts took place.

5. The Plaintiff filed a Notice of Motion for summary judgment on 30 September 2016. It was returnable today and was referred to me as the duty judge for hearing. Mr Dimitriou has sought an adjournment for two weeks because he says that there is a refinancing arrangement in place and he wants to put on evidence in response to the Notice of Motion.

6. In the circumstances that today is the return date of the Notice of Motion, and against the objections of counsel for the Plaintiff, I consider it is appropriate to grant a short adjournment to enable the Defendant to serve any evidence in response to the Notice of Motion and the affidavit, and to pursue the refinancing which Mr Dimitriou suggests is imminent.

7. However, I do not consider that the Defence as filed discloses any defence to the claim. For that reason, the Defence filed 13 July 2016 is struck out. The Defendant is given leave to replead, and any such amended defence is to be filed and served by 26 October 2016. Any evidence on which the Defendant relies in response to the Notice of Motion is to be served by 26 October 2016.

8. On 17 August 2016, the Registrar ordered that Mr Dimitriou was to provide a written authority for him to act on behalf of the Defendant, and to have that available at the next listing. That authority has not yet been provided. If Mr Dimitriou is to be given leave to appear on behalf of the company on the adjourned date of the Motion, such authority must be provided to the Court on the adjourned date.

9. The proceedings are adjourned to 3 November 2016. The Notice of Motion is adjourned to that date for hearing before me at 10am.

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Decision last updated: 12 October 2016