Commonwealth Bank of Australia v Weerts

[2015] NSWSC 425

Supreme Court

New South Wales

Medium Neutral Citation:	Commonwealth Bank of Australia v Weerts [2015] NSWSC 425
Hearing dates:	13, 14 April 2015
Date of orders:	15 April 2015
Decision date:	15 April 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	The notice of motion filed by the defendant on 9 March 2015 is dismissed.
Catchwords:	PRACTICE AND PROCEDURE – Application to set aside default judgment – No proper explanation for delay – Bona fide defence not made out – Application dismissed – No point of principle
Category:	Principal judgment
Parties:	Commonwealth Bank of Australia - Plaintiff Trevor Anthony Weerts - Defendant
Representation:	Counsel: Mr D McLure – Plaintiff (on 14 April) Solicitors: Gadens - Plaintiff Self - Defendant
File Number(s):	2014/202281

Judgment – EX TEMPORE (REVISED)

1. By a notice of motion filed on the 9 March 2015 the defendant Trevor Anthony Weerts, seeks orders which are pleaded in the following terms:

1. That the default judgment entered 3 November 2014 be set aside;

2. That the defendant be allowed six months to file a defence;

3. That the Court grant a stay of enforcement in the matter until the notice of motion is determined;

4. That the notice of motion for a stay of enforcement be dealt with on an urgent ex parte basis in chambers; and

5. That the costs of the motion be costs in the cause.

2. The matter first came before me on 13 April 2015 at which time Mr Weerts appeared unrepresented. On that occasion he indicated that he wished to cross-examine Mr Stamef, an officer of the plaintiff, who had sworn an affidavit. For reasons about which I commented at the time, Mr Stamef was said to be “unavailable” to attend Court that day. Accordingly, the proceedings were adjourned until the following day, 14 April. On that occasion, Mr McLure of counsel appeared on behalf of the plaintiff and Mr Weerts again appeared unrepresented. Mr Stamef was in attendance and was cross-examined.

3. At the commencement of the proceedings on 14 April Mr McLure handed to me a bundle of evidentiary material in a folder entitled "Court documents". No objection was raised by Mr Weerts to the reliance, by the plaintiff, upon any of that material, even though some of it went beyond that which had been sought to be relied upon when the matter was before me the previous day.

4. It is necessary for me to briefly recount the history of the proceedings. In that regard, I have been assisted by the helpful written submissions provided by the solicitor for the plaintiff at the commencement of the hearing.

5. On 9 July 2014 the plaintiff filed a statement of claim seeking judgment for possession of the whole of the land situated at and known as 135 Veterans Parade, Narrabeen, as well as the land situated at and known as 221 Hudson Parade, Clareville. The plaintiff also sought recovery of monies from the defendant which were owing under mortgages over each of those properties, pursuant to loans which were referred to in the evidentiary material as the first, second, third, fourth and fifth, sixth, seventh and eighth accounts respectively.

6. On 9 August 2014 the defendant was served with a copy of the statement of claim. Included amongst the folder of material provided to me by Mr McLure and read by the plaintiff was an affidavit of Honnie Harker sworn 11 August 2014, in which Ms Harker deposed to the fact that she personally served a copy of the statement of claim on the defendant at 4pm on 9 August 2014. In light of one of the matters raised by the defendant the affidavit of Ms Harker assumes some significance and I will return to it in due course.

7. The statement of claim having been served, no defence was filed or served by the plaintiff. The property at 221 Hudson Street, Clareville was sold in or about October 2014. The plaintiff discharged its mortgage over that property. The second, third, fifth, sixth, seventh and eighth accounts were repaid on settlement.

8. On 31 October 2014 the plaintiff filed a notice of motion for default judgment.

9. On 3 November 2014 default judgment was entered, firstly in respect of the debts in the first and fourth accounts, and secondly in respect of the possession of the property at 135 Veterans Parade, Narrabeen.

10. On 24 November 2014, the plaintiff filed a notice of motion for a writ of possession for that Narrabeen property. A notice to vacate was issued on 5 January 2015 and an eviction was scheduled for 10 February 2015. The eviction took place on that day.

11. On 26 February 2015, the plaintiff filed a notice of motion for a writ of restitution in respect of the property at Veterans Parade, Narrabeen following the defendant's reoccupation of it. On 5 March 2015, a notice to vacate was issued scheduling a further eviction of the property for Tuesday, 21 April 2015.

12. It is against the above procedural background that the notice of motion is to be determined.

13. The defendant, in support of the motion, relied upon two affidavits. The first was his affidavit of 9 March 2015 and the second was his affidavit of 25 March 2016.

14. The affidavit of 9 March 2015 contains a number of assertions. They include an allegation that the plaintiff is in breach of orders made by the Family Court of Australia. They also include, inferentially at least, an allegation of fraud on the part of the plaintiff. That allegation is not otherwise substantiated. The second and more lengthy affidavit of the plaintiff of 26 March 2015 also contains a number of assertions which are largely unsupported by the evidence.

15. The nature of the orders sought by the defendant in the notice of motion require me to give consideration to two principal issues. The first is whether or not the defendant has provided an explanation for the delay. The second is whether or not he has made out a bona fide defence on the merits.

16. In the course of submissions at the conclusion of the evidence I endeavoured, in an effort to assist the defendant, to direct his attention to those two primary considerations. Notwithstanding that, the defendant made a number of submissions which did not go to either of those issues. His submissions appeared to reflect a desire to air a number of grievances that he obviously has against the plaintiff, the majority of which appear to have little relevance to the present application.

17. To the extent that I was able to ascertain the defendant's position in respect of the two issues to which I directed his attention, it appeared that he firstly asserted that he was never properly served with the statement of claim. The affidavit of Ms Harker to which I previously referred causes me to reject the defendant's submission in that regard. Ms Harker was not cross-examined on her affidavit. I accept, having read it, that she served the defendant at the time and date to which she referred. The defendant seemingly took some issue with the fact that Ms Harker deposed in her affidavit to asking him a question or questions designed to confirm that he was in fact the defendant in the proceedings. The defendant submitted, amongst other things, that there was no need for Ms Harker to ask those questions in circumstances where, according to the defendant, she had previously served him with not dissimilar documentation. The effect of the defendant's submission appeared to be that I should draw some sinister inference from that part of Ms Harker's affidavit and that I should conclude that the affidavit was somehow untruthful.

18. The confirmatory questions asked of the defendant by Ms Harker were, in my view, nothing more than the type of questions generally asked in such situations. It is not uncommon for a process server, for reasons which are completely understandable, to seek to confirm with the proposed recipient of legal documents that he or she is in fact the person named in them. In those circumstances, I am not able to accept the defendant's submission. I am satisfied that he was served with the statement of claim. Nothing in the evidence, and nothing advanced by the defendant in the course of submissions, explains why he did nothing in response to being served.

19. I have given full weight to the evidence which is before the Court that the defendant has been in ill health for some time, and was diagnosed with some form of cancer in the first six months of 2014. I accept that an illness of that severity has the capacity to have an impact upon a person's ability to carry out their day to day activities and attend to their affairs. At the same time, evidence tendered by the defendant before me demonstrates that he was fit enough to travel to New Zealand for a period of some weeks in August 2014. I am not satisfied in the circumstances that his illness provides any adequate explanation for his failure to respond to the statement of claim, or for the delay which has been occasioned in bringing about the present application since judgment was entered against him.

20. I am similarly not satisfied that any of the evidentiary material relied upon by the defendant establishes a bona fide defence on the merits to the plaintiff's claim. As I have already indicated, much of the affidavit material makes unsubstantiated allegations against the plaintiff and its employees. They include an unsupported allegation of fraudulent conduct.

21. There was also a reference in the cross-examination of Mr Stamef to some agreement or arrangement the defendant appeared to assert had been made with a representative of the plaintiff regarding the repayment of one or more of the loans. That matter was not further pursued, be it in oral evidence or in submissions.

22. Having read the entirety of the two affidavits of the defendant, I am not satisfied in all of the circumstances that any bona fide defence has been made out.

23. In all of these circumstances, the defendant's notice of motion must fail. Accordingly I make the following order:

1. The notice of motion filed by the defendant on 9 March 2015 is dismissed.

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Decision last updated: 17 April 2015