Defined Properties Investment ATF the Defined Property Trust No 1 v National Commercial Finance Pty Ltd

[2018] NSWSC 348

Supreme Court

New South Wales

Medium Neutral Citation:

Defined Properties Investment ATF The Defined Property Trust No 1 v National Commercial Finance Pty Ltd [2018] NSWSC 348

Hearing dates:

27 February 2018

Date of orders:

27 February 2018

Decision date:

27 February 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to the provisions of s 62(2) of the Civil Procedure Act 2005, the plaintiffs shall file and serve by 4 pm on 8 March 2018 a Statement of Claim defining their allegations in the substantive proceedings.

 

(2)   The motion filed 22 January 2018 by the plaintiffs shall be stood over before the Registrar at 9.30 am on 22 January 2018.

 

(3)   The application or motion made orally by the plaintiffs for the payment into court of an amount being the proceeds of the sale, effected pursuant to the orders of the Court, issued by Lonergan J on 16 January 2018 and by Button J on 30 January 2018, is refused.

 (4)   The plaintiffs shall pay the defendant’s costs of today.

Catchwords:

POSSESSION – equitable relief sought against mortgagee – pleading required;
INTERLOCUTORY RELIEF – mortgagee sale – equitable relief sought by mortgagee after sale – request for payment into court of proceeds of sale – no evidence of inability to meed any verdict or dissipation of funds – motion dismissed.

Legislation Cited:

Civil Procedure Act 2005
Contracts Review Act 1980

Category:

Consequential orders (other than Costs)

Parties:

Defined Properties Investment ATF The Defined Property Trust No 1 (Plaintiff)
National Commercial Finance Pty Ltd (Defendant)

Representation:

Solicitors:
Grays Legal (Plaintiffs)
ERA Legal (Defendants)

File Number(s):

2017/00317826

Ex Tempore Judgment

1. HIS HONOUR: Before the Court by way of Motion by notice, filed 22 January 2018, in which the plaintiff or plaintiffs seek to set aside a set of orders issued by the Court on 16 January 2018 because they, as I understand it, adversely impact the plaintiffs. That seems to be the only matter that is sought in the Motion. Nevertheless, no substantive orders are sought.

2. The plaintiff seeks an adjournment of two weeks and a payment in default by the defendant of the proceeds of sale relating to the sale of property, which is the underlying difficulty that has agitated the controversy between the parties.

3. The matter has been before the Court for quite some time. Given that the nature of the matter is related to the finalisation of a possession matter (namely, the enforcement of a mortgage in which there was default), the delay has been far too long and unusual. The delay between the proceedings, that is any one of the proceedings being filed, and the finalisation of the matter is difficult to reconcile with the duty imposed upon the parties’ legal practitioners and the Court to facilitate the just, quick and cheap resolution of the real issues between the parties.

4. The adjournment of two weeks is not opposed by the defendant. However, the defendant suggests that it is unclear from the nature of the documents what is the cause of action and the nature of the issues between the parties.

5. The provisions of s 56 and following make clear that the real issues between the parties are to be defined by the pleadings. The plaintiff refers to a Notice to Produce served, it seems, on one or other of the defendants and the non-compliance with that Notice.

6. First, it is not absolutely clear that the Notice was served on an entity that is currently a party to the proceedings but, be that as it may, it is difficult for a person receiving a Notice to Produce to determine what is relevant to the Notice or the basis, if any, on which any objection, if any, can be taken to the Notice, unless the party is aware of the issues of fact that are controversial or in issue between the parties.

7. It would be impossible on the basis of a Summons to understand fully the nature of the issues between the parties. The substantive proceedings issued by the plaintiffs seek relief either on the basis of one or other equitable remedy, or on the basis of statutory relief, such as the Contracts Review Act 1980, from the full impact of the contract and/or agreement between the plaintiffs, on the one hand, and the defendant, on the other hand, relating to the provisions and lending of money or the interest thereon.

8. It seems to me that in those circumstances the nature of the proceedings requires a degree of precision that the Summons before the Court will not deliver. I am, therefore satisfied that there should be a direction that the plaintiffs file a Statement of Claim and that the matter proceed by pleadings.

9. The adjournment will be granted. The adjournment it is not objected to. Nevertheless, the Court will make a direction pursuant to the terms of s 61 of the Civil Procedure Act2005 that the plaintiffs file and serve a statement of claim specifying that which is necessary in a statement of claim for the substantive relief in the proceedings now before the Court.

10. I make it clear in these reasons for judgment that the provisions of s 61(3) of the Civil Procedure Act may mean that steps will be taken by the Court for the dismissal of the proceedings or for the striking out of any claim if compliance with the aforesaid directions does not occur.

11. Secondly, I order that the Motion as filed be listed before the Court in two weeks’ time before the Registrar.

12. Lastly, particularly given the absence of any material upon which there is a risk of dissipation of any assets of the defendant or a risk that the defendant would be unable to pay any judgment of the Court, assuming for present purposes without deciding that there is an arguable case against the decision, I refuse the application of the plaintiff for a payment into Court by the defendant.

13. As a consequence of the foregoing, the Court makes the following orders:

1. Pursuant to the provisions of s 62(2) of the Civil Procedure Act 2005, the plaintiffs shall file and serve by 4 pm on 8 March 2018 a Statement of Claim defining their allegations in the substantive proceedings.

2. The motion filed 22 January 2018 by the plaintiffs shall be stood over before the Registrar at 9.30 am on 22 January 2018.

3. The application or motion made orally by the plaintiffs for the payment into court of an amount being the proceeds of the sale, effected pursuant to the orders of the Court, issued by Lonergan J on 16 January 2018 and by Button J on 30 January 2018, is refused.

4. The plaintiffs shall pay the defendant’s costs of today.

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Decision last updated: 19 March 2018