Collis Finance Pty Ltd v Hertford

[2016] NSWSC 149

Supreme Court

New South Wales

Medium Neutral Citation:	Collis Finance Pty Ltd v Hertford [2016] NSWSC 149
Hearing dates:	29 February 2016
Date of orders:	29 February 2016
Decision date:	29 February 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Defences dated 17 and 20 February 2016 struck out. 2. Plaintiff not to seek default judgment before 7 March 2016. 3. Costs of 29 February 2016 reserved.
Catchwords:	REAL PROPERTY – possession of land – early judicial directions – filed Defence discloses no defence to the claim – defence struck out
Category:	Procedural and other rulings
Parties:	Collis Finance Pty Ltd (Plaintiff) Terrence Patrick Hertford (First Defendant) Elizabeth Smith Hertford (Second Defendant)
Representation:	Counsel: D Fleming (Plaintiff) D Hertford (by leave on behalf of First and Second Defendants)   Solicitors: Pigott Stinson (Plaintiff) Unrepresented (First and Second Defendants)
File Number(s):	2015/310165

Judgment

1. These proceedings commenced on 22 October 2015 claiming possession of two shops in Arden Street, Coogee. The shops had been mortgaged to the Plaintiff in August 2007 and June 2009 to secure loans that total something over $1.5 million made in June 2009 and August 2007. Default is said to have occurred by the non-payment of interest from about the beginning of January 2014 and continuing to the present time. As at June last year the amount of interest said to be owing under both the loans exceeded $270,000.

2. The Defendants acting for themselves apparently filed a Defence to the claim. The matter came before the Registrar on 4 February 2016 and one of the orders made was that the Defendants were to provide the Plaintiff with a copy of any proposed Amended Defence by 17 February 2016. A Defence which was not verified or signed seems to have been filed in the court on 17 February. I am told that a verified form of that Defence was subsequently filed on 20 February.

3. The Defence points out that the First Defendant, Mr Terrence Hertford, suffers from certain medical conditions. It makes reference to problems at the shops from water leaks and otherwise indicates that a proposal can be made to catch up with the payments that are outstanding.

4. This morning the Defendant's son who is not a lawyer has been given leave to appear and speak on behalf of his parents. He complains that no copies of the mortgages have been provided to his parents by the Plaintiff and says that a plan has been put forward to the Plaintiff's solicitors but has not been responded to.

5. The Defence filed discloses no defence to the claim and it does not appear from discussions that have taken place in court this morning that the Defendants have any defence to the claim. They simply want time to negotiate with the Plaintiff to reach some arrangement with them.

6. I have not been able to ascertain when any payment was last made to the Plaintiff nor when copies of the mortgage were first requested. The solicitor for the Plaintiff has agreed this morning to provide during this week copies of the two mortgages that the Defendants wish to see.

7. The Defence discloses no defence to the claim and should therefore be struck out. The Plaintiff is not to seek default judgment until after the date on which the proceedings are to be adjourned, namely, 7 March 2016. On that occasion I will seek again from the Defendants what defence, if any, they have to the claim. If none is able to be demonstrated the Plaintiff will be given leave on that occasion to obtain default judgment against the Defendants.

8. The orders I make are that the Defence filed 17 February and apparently subsequently on 20 February 2016 is struck out. I stand over the matter to 7 March 2016 at 9.30 before me.

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Decision last updated: 29 February 2016