Commonwealth Bank of Australia v Vella

Case •

[2016] NSWSC 893

•

28 June 2016

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Vella [2016] NSWSC 893
Hearing dates:28 June 2016
Date of orders: 28 June 2016
Decision date: 28 June 2016
Jurisdiction:Common Law
Before: Davies J
Decision:

1. Defence filed 20 May 2016 is struck out.
2. Leave to the Plaintiff to move for default judgment.
3. Stay the issue of a writ of possession until 26 July 2016.
4. Liberty to apply on 2 days’ notice.

Catchwords: REAL PROPERTY – mortgages – possession of land – no defence disclosed in Defence filed – Defence struck out – leave given to Plaintiff to obtain default judgment
Category:Procedural and other rulings
Parties: Commonwealth Bank of Australia (Plaintiff)
Mary Assunta Vella (First Defendant)
Representation:

Counsel:
R Pillay (Plaintiff)
In person (First Defendant)

  Solicitors:
Gadens Lawyers (Plaintiff)
Unrepresented (First Defendant)
File Number(s):2016/131825

Judgment

  1. These proceedings commenced on 29 April 2016 seeking possession of land at 410 Georges River Road, Croydon Park. The basis for the claim for possession was default under a loan agreement and a mortgage entered into on 11 October 2013 when the Defendant borrowed a little over $400,000 from Bankwest to whose rights and obligations the present Plaintiff has succeeded.

  2. The Defendant, acting for herself, filed a Defence on 20 May 2016. The substance of that Defence was that she engaged a person who appears to have been a mortgage broker or something similar, named Dib El-Hamsi. According to the Defence, the loan appears to have been negotiated between Mr El-Hamsi and the Bank on the Defendant's behalf, although she then asserts that Mr El-Hamsi and his wife took the entire benefit of the loan.

  3. The Defence pleads that the Bank did not obtain financial records from her. It pleads that the loan was entered into under duress from Mr El-Hamsi. The Defence goes on to say:

(vi)   Defendant seeks an order that the mortgage be discussed and loan declared abanitio (sic).

(vii)   Punative (sci) damages are also sought as the Defendant can’t refinance nor obtain finance.

  1. A little more information comes from an affidavit that she provided in equity proceedings that she commenced on 29 February 2016 against Bankwest. In those proceedings she sought the discharge of the mortgage that is over the property arising from the loan. In her statement in that matter she suggests that she was confused because she was taking antidepressant drugs and she does not really know what happened, as far as Mr El-Hamsi was concerned, in obtaining the loan from the Bank and using the proceeds for himself. She discovered there was a mortgage on her property when she applied to Centrelink for benefits.

  2. The Defence filed on 20 May 2016, besides not being pleaded in proper form, does not disclose a Defence to the claim for possession.

  3. There was no appearance on the last occasion when the matter was before me. I instructed my associate to write to the Defendant, which she did on 8 June. The letter set out the directions that were made which provided for an amended Defence and/or cross-claim to be filed and served by 22 June 2016 and she was informed that the proceedings would be listed again today along with the equity proceedings that she had commenced against Bankwest. The letter went on to say this:

His Honour indicated that the Defence that you have filed in the matter on 20 May 2016 does not disclose a Defence to the claim made by the Bank. If there is no further Defence filed by you which does identify a Defence, a judgment is liable to be given against you when the proceedings are again before his Honour on 28 June 2016. In addition, if there is no appearance by you or by someone on your behalf, a judgment is liable to be given against you.

  1. There was initially no appearance when the Defendant was called this morning. After I had delivered the foregoing reasons, the Defendant appeared. She was accompanied by a Mr Weston who informed me that he was on the roll of lawyers but did not have a practising certificate. I gave him leave to appear for the Defendant.

  2. Mr Weston acknowledged that the property needed to be sold so that the Bank could be paid out. The Defendant was anxious to obtain the best price for the property. In that regard Mr Weston said that a small amount of work needed to get the property in good condition to sell it. The Defendant wanted a little time also to speak with those acting for the Bank in relation to the sale.

  3. No explanation was offered for the failure to file any further Defence. In those circumstances, the Defence filed 20 May 2016 is struck out. The Plaintiff is given leave to obtain default judgment against the Defendant. I will stay the issue of any writ to enforce any judgment obtained until 26 July 2016. The Plaintiff is to consider its position with regard to the equity proceedings.

  4. I make the following orders:

  1. The Defence filed 20 May 2016 is struck out.

  2. The Plaintiff is given leave to move for default judgment.

  3. Stay the issue of any writ to enforce the judgment of the Court until 26 July 2016.

  4. Liberty to apply on 2 days’ notice.

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Decision last updated: 29 June 2016

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