Collis Finance Pty Ltd v Hertford (No. 2)
[2016] NSWSC 192
•07 March 2016
Supreme Court
New South Wales
Medium Neutral Citation: Collis Finance Pty Ltd v Hertford (No. 2) [2016] NSWSC 192 Hearing dates: 7 March 2016 Date of orders: 07 March 2016 Decision date: 07 March 2016 Jurisdiction: Common Law Before: Davies J Decision: Leave to the Plaintiff to move for default judgment against the Defendants
Catchwords: REAL PROPERTY – possession of land – defendants given a further opportunity to identify defence to claim for possession – no defence shown – plaintiff at liberty to seek default judgment Category: Procedural and other rulings Parties: Collis Finance Pty Ltd (Plaintiff)
Terrence Patrick Hertford (First Defendant)
Elizabeth Smith Hertford (Second Defendant)Representation: Counsel:
Solicitors:
D Fleming (Plaintiff)
D Hertford (by leave on behalf of First and Second Defendants)
Pigott Stinson (Plaintiff)
Unrepresented (First and Second Defendants)
File Number(s): 2015/310165
Judgment
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On 29 February 2016, these proceedings came before me for early judicial directions for the first time. On that occasion, I recited the brief history of the proceedings and struck out a Defence that had been filed twice on 17 and 20 February 2016: Collis Finance Pty Ltd v Hertford [2016] NSWSC 149
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The proceedings were stood over to today for the Defendants to inform the Court through their son, who has again given leave to appear for them, what defence if any they have to the claim.
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A further document entitled "Defence" has been handed to the Court and to the Plaintiff's legal representative. The first six paragraphs of this document speak of arrangements which the Defendants are said to have made to resolve the matter or are willing to make in terms of attending a mediation. Reference is then made in paragraph 7 to the First Defendant's medical condition. Paragraph 8 refers to the authority given by the Defendants for their son to appear for them.
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Paragraph 9 says that the First Defendant will have a defence but that requires time due to his medical condition. That was amplified in oral submissions when I was informed that the Defendants are approaching lawyers to assist them with the matter. Mr Hertford was, however, unable totem me who those lawyers were.
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Paragraphs 10 to 16 make reference to what is said to be general failures on the part of the Plaintiff and general inaccuracies in the statement of claim. Those inaccuracies were identified as being claims for more interest than was said to be payable by the Defendants.
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The defence does not indicate any defence to the claim for the repayment of the principal sums let alone interest that was agreed to be paid nor did my questioning of Mr Hertford identify any defence. It appears to be accepted by the Defendants that the principal amounts are due and payable, and it may be that some interest in terms of the contractual arrangements is also accepted as being payable because of the offer to pay the arrears.
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Mr Hertford said that the commercial tenants of the two shops wish to be joined as Defendants to the proceedings. He makes complaint that they were not served with notices to occupiers. The affidavits of service of those notice to occupiers suggest otherwise. There are two affidavits of service of notices to occupiers sworn by Joseph Khoury on 30 October 2015. He swears to having left the notices by delivering them under the doors of the shops on 28 October 2015. No application has been made by any occupiers, tenants or otherwise, to be joined as defendants to the proceedings.
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Mr Hertford was not able to point to any defence that the commercial tenants might have to the claim for possession of the land. He said that they want to protect their tenancies and that they may want to direct their rent payments to the Plaintiff.
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The Defence now sought to be relied upon does not disclose any defence to the claim. No other defence has been identified in the matter.
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The issue at the moment concerns possession for default in making interest payments. The precise amounts that are payable to the Plaintiff by the Defendants are not the relevant issue. I will not permit the document which is now marked exhibit 1 to be filed as the defence. The Defendants have no defence for the claim for possession of land. In those circumstances, the Plaintiff is free to move for default judgment against the Defendants.
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Decision last updated: 08 March 2016