Bendigo and Adelaide Bank Ltd v O'Neill
[2015] NSWSC 1768
•25 November 2015
Supreme Court
New South Wales
Medium Neutral Citation: Bendigo and Adelaide Bank Ltd v O’Neill [2015] NSWSC 1768 Hearing dates: 25 November 2015 Date of orders: 25 November 2015 Decision date: 25 November 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. First Defendant’s Defence dated 2 September 2015 struck out.
2. Plaintiff granted leave to move for default judgment.Catchwords: REAL PROPERTY – mortgages – possession of land – defence by first defendant not signed nor sworn – no defence by second defendant – failure of first defendant to comply with directions to serve affidavit about defences raised – two extensions not complied with – defence struck out Category: Procedural and other rulings Parties: Bendigo and Adelaide Bank Ltd (Plaintiff)
Matthew Brett O’Neill (First Defendant)
Susan Jennifer O’Neill (Second Defendant)Representation: Counsel:
Solicitors:
R Lewin (Plaintiff)
No appearances (Defendants)
Gadens Lawyers (Plaintiff)
Self-represented (Defendants)
File Number(s): 2015/207718
Judgment
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The Plaintiff commenced these proceedings on 16 July 2015 seeking possession of land at 14 Lancelot Court, Castle Hill and judgment for a monetary sum said to be owing to the Bank. The basis for both the claim for possession and the monetary sum was default in meeting the requirements of a loan agreement dated 17 January 2012 which was secured by a mortgage. The loan was for an amount of $487,000.
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A Defence was filed on 2 September 2015 by the First Defendant and it was said to be in relation to the First Defendant. The Defence admitted the entry into the loan agreement and the mortgage but disputed that there was default and disputed that notices required to be served under the Credit Code had been served. The Defence also said this in para 8:
In an email sent to Adelaide and Bendigo Bank, third party mortgage legal mailbox dated 22 May I requested information and clarification on why I was requested to pay the contract in full yet no response was ever received.
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The suggestion that the Defendants were required to pay the mortgage in full is likely to have arisen because they had failed to comply with notices to bring up to date the default in the arrears which default occurred by about December 2014.
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The First Defendant also said in para 9 of his Defence:
The defendant denies the allegation in paragraph 9 [that is, that there was an amount of $50, 640.63 owing by the Defendants] and I have proof of payment showing all payments have been made.
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This Defence was not signed by the First Defendant, nor was it sworn by him in accordance with the rules.
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The matter came before me for early judicial directions on 12 October 2015. There was no appearance for the First Defendant, but I was informed by Mr Pillay, who appeared for the Plaintiff, that the Second Defendant had some medical issues and was undergoing treatment, and that was why the Defendants were not able to attend. The Plaintiff was content for the matter to be stood over for a short period of time to a date on which Mr Pillay said he had confirmed the Defendants would be available. I indicated on that occasion that I was minded to direct the Defendants to file evidence showing what amounts they claimed to have paid that had not been credited to their account with the Plaintiff.
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When the matter came before me on 26 October, there was no appearance for the Defendants. The Court had received a message earlier that morning saying that Mr O'Neill was running late and he would be here by 10.30. The matter was accordingly stood down in my list. However, there was no appearance for either of the Defendants. On that occasion, I directed that the Defendants were to serve affidavits showing payments made and annexing any relevant documents showing payment of those amounts by 9 November 2015, and I adjourned the matter to today.
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On 8 November, that is the day before the evidence was due, my associate received an email from the First Defendant asking for an extension of time because the First Defendant said he was still waiting for his Bank to supply an affidavit relating to the documents he wanted. The Plaintiff's agreement to an extension of time was sought and was agreed to. My associate wrote to Mr O'Neill on 8 November extending the time for service to 2pm on 18 November.
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At 8 o'clock in the morning on 18 November, my associate received another email from the First Defendant saying that he had been vigorously chasing the material but he needed another extension till the close of business on Friday 20 November. He said he was not trying to disadvantage the Plaintiff nor stall for time. Having obtained the Plaintiff's consent again, I extended the time, which I said was the final extension, to 5pm on Friday 20 November for compliance with the orders made on 26 October. The email said that no further extensions would be granted. I note in passing that this sated need to obtain material from the First Defendant’s bank did not sit easily with the statement in his defence that he had proof of payment of all amounts.
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On 22 November, the First Defendant sent an email with attachments. Those attachments, when opened, were incomprehensible, probably having been corrupted in the email process. The First Defendant was advised of that and he sent further documents which were also incomprehensible.
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This morning at 7.27am, my associate received a further email from the First Defendant saying that he wished to apply to have the matter adjourned for a short period of time to enable the Plaintiff to evaluate documents relating to the claim they had made against him. My associate advised Mr O'Neill that the matter would remain listed at 9.30am this morning for determination.
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When the matter was called on for hearing at about 10.15, there was no appearance for the First Defendant.
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Only two matters of any substance are raised in the Defence. The first is a failure to serve notices required under the Act, and the second is issues in relation to the payment of moneys due under the loan agreement.
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I am satisfied, from reading the affidavit of Lisa Marie Banner sworn 23 October 2015, that the notices required to be served under s 88 of the National Credit Code were served and received by the Defendants. The evidence from Australia Post in relation to the express service proves those deliveries. The notices were sent to the security property at 14 Lancelot Court, Castle Hill, and to a further address at 73 Coronation Road, Baulkham Hills, an address which the Defendants had asked to be used for the service of notices.
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In relation to the second matter about the non-crediting of payments made, I note first that in the Defence of 2 September 2015, the First Defendant said that he had proof of payment showing all payments had been made. He was given an opportunity on 26 October to show that these payments had been made. He was given two indulgences in extensions of time to show that these payments have been made. He has failed to do so.
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I note in any event that because the Defence is not signed or sworn by the First Defendant, he is, under the rules, in default of filing a defence. No defence has been filed at all by the Second Defendant.
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I am satisfied, from the material annexed to the affidavit of Claudio D Donatis sworn 23 October 2015, that there has been default under the loan agreement and mortgage and that no payments have been made to the Plaintiff after 9 December 2014. No arguable defence is disclosed on the purported Defence filed on 2 September 2015. Accordingly, that Defence is struck out. The Plaintiff is free to move for default judgment.
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Decision last updated: 26 November 2015
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