ING Bank (Australia) Limited v Hung

[2013] NSWSC 1924

Supreme Court

New South Wales

Medium Neutral Citation:

ING Bank (Australia) Limited v Hung [2013] NSWSC 1924

Hearing dates:

18 December 2013

Decision date:

18 December 2013

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. Summary judgment for the plaintiff for possession of the land the subject of the proceedings situated and known as XX XXXXX XXX XXXX, XXXXX X XXX, comprised in folio identifier X/XXXXX X.

2. That the plaintiff have leave to issue a writ of possession.

3. That the writ not be enforced prior to the matter coming before me at 9.45am on 4 February 2014.

4. That in the meantime, the parties meet to actively pursue a resolution of their dispute as to the money amount payable to the plaintiff, noting that the plaintiff has indicated its willingness to meet with the defendants in January.

5. That the matter come into the list at 9.45am on 4 February 2014 for further directions.

Catchwords:

PROCEDURE - possession - notice of motion - summary judgment for possession - leave to issue writ of possession granted

PROCEDURE - pleadings - notice of motion - leave sought to file amended defence and amended cross-claim - leave granted

Category:

Procedural and other rulings

Parties:

ING Bank (Australia) Limited
ACN 000 893 292 (Plaintiff)
Edgar Yan Kai Hung (First Defendant)
Grace Suk-Woon Lee (Second Defendant)

Representation:

Counsel:
Mr AC Casselden (Plaintiff)
Solicitors:
Gadens Lawyers (Plaintiff)
Mr E Hung, in person (First Defendant)

File Number(s):

2013/233620

Publication restriction:

None

EX TEMPORE Judgment

1. HER HONOUR: This morning listed for hearing was a motion filed by the plaintiff on 14 November 2013 pursuant to which was sought various orders, including orders for possession of land the subject of these proceedings. That was supported by an affidavit sworn by Mr Miller, the plaintiff's collection manager.

1. This morning Mr Hung, the first defendant, appeared and sought an adjournment in order that a notice of motion filed by the defendants on 16 December, which had been listed before the Registrar in February 2014, could be heard. By that motion, the defendants sought leave to file and serve an amended defence and an amended cross-claim, orders that the proceedings be referred to mediation and that the plaintiff's notice of motion be stood over until after that mediation.

1. The adjournment application was opposed in circumstances where the plaintiff consented to the leave sought to file the amended defence and cross-claim. Accordingly, that leave was granted.

1. From those amended pleadings, it became apparent that there was no issue between the parties as to the existence of the mortgage and loan, or that the loan had fallen into arrears. What was in dispute was the amount which should be paid or repaid to the plaintiff in circumstances where the property was sold.

1. Having heard the parties, I concluded that the application for adjournment of the hearing of the plaintiff's motion should not be granted and that the orders pressed by the plaintiff for possession of the land and for leave to issue a writ of possession should be granted, but that the writ should be stayed until the matter could come back into the list before me on 4 February 2014 for further directions, it being agreed in the meantime that the parties would meet to actively pursue resolution of their dispute.

1. From what has fallen from the parties, it seems as if a settlement might not be possible, until after the property has been sold when what the sale realises is known. That is something for them to discuss, so that on the next occasion appropriate directions can be given, if necessary, for the hearing of what remains in dispute. It may be then that Mr Hung presses an order for mediation, which will be entertained. That will depend on what transpires when the parties meet in January.

1. For these reasons, I make the following orders:

1. Summary judgment for the plaintiff for possession of the land the subject of the proceedings situated and known as XX XXXXX XXX XXXX, XXXXX X XXX, comprised in folio identifier X/XXXXX X.

2. That the plaintiff have leave to issue a writ of possession.

3. That the writ not be enforced prior to the matter coming before me at 9.45am on 4 February 2014.

4. That in the meantime, the parties meet to actively pursue a resolution of their dispute as to the money amount payable to the plaintiff, noting that the plaintiff has indicated its willingness to meet with the defendants in January.

5. That the matter come into the list at 9.45am on 4 February 2014 for further directions.

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Decision last updated: 03 February 2014