ING Bank Australia Ltd v Bucknell
[2016] NSWSC 1049
•29 July 2016
Supreme Court
New South Wales
Medium Neutral Citation: ING Bank Australia Ltd v Bucknell [2016] NSWSC 1049 Hearing dates: 29 July 2016 Date of orders: 29 July 2016 Decision date: 29 July 2016 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence dated 16 June 2016 struck out.
2. Any proposed Amended Defence to be served by 10 August 2016.Catchwords: REAL PROPERTY – mortgages - possession of land – pleading of defence – pleading that certain paragraphs were neither admitted nor denied – embarrassing pleading – pleading of estoppel by representation – no representations pleaded – defence struck out – leave to re-plead Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: ING Bank Australia Ltd (Plaintiff)
Grant Andrew Bucknell (First Defendant)
Sandra Bucknell (Second Defendant)Representation: Counsel:
Solicitors:
R Pillay (Plaintiff)
S Brennan (Defendants)
Gadens Lawyers (Plaintiff)
Frontier Law Group (Defendants)
File Number(s): 2016/104267
Judgment
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These proceedings commenced on 6 April 2016, seeking possession of land at 57 Jackman Drive, Camden Park. On 28 March 2014, the Defendants entered into a loan agreement with the Plaintiff to borrow the sum of $841,600. By 6 January 2016 there had been default under the two loan arrangements made as part of the loan agreement between the Plaintiff and the Defendants, such defaults totalling a little over $41,000. They have not been rectified since that time. The amount outstanding at 31 March 2016 was $87,576. A Defence was filed on 16 June.
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In substance, the allegations of default alleged in the Statement of Claim have been denied except in one respect. Paragraph 2 of the Defence reads:
The Defendants neither admits or denies the allegations made in paragraphs 7, 8, 9 and 12 of the statement of claim. Paragraph 7 is one allegation in the statement of claim of a default.
A pleading that a party neither admits nor denies an allegation is an embarrassing pleading and should not be allowed to stand, because it has no meaning.
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The Defence otherwise pleads as follows:
4. The Defendants have made attempts to invoke the financial hardship policies of the Plaintiff.
5. Despite having knowledge about the Defendants' financial hardships, the Plaintiff commenced these proceedings.
6. In the circumstances, the Plaintiff is estopped from reliance upon the written terms of the agreement and the mortgage.”
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On the face of those pleadings no estoppel is identified, chiefly because no representations are identified. Mr Brennan, who appears for the Defendants, says it is to be implied into the pleading in those paragraphs that there may have been representations made to the Defendants in one form or another, including by the way the financial product was advertised, that caused the Defendants to have the view that the Plaintiff would not commence proceedings in the event of default without endeavouring to work through the financial hardships being sustained by the Defendants, perhaps in accordance with any provisions in the loan agreement that have not yet been identified
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Mr Brennan sought also to rely on the provisions of r 14.11 Uniform Civil Procedure Rules 2005 (NSW) in relation to it not being necessary to plead conditions precedent. I do not consider that r 14.11 has any application to the present pleading.
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Paragraphs 4, 5 and 6 do not properly plead an estoppel. Even if they did, it is very difficult to see how that would amount to a defence to the claim unless it was an incident of the estoppel that it was a condition precedent to the commencement of the proceedings that the financial hardship policies, as pleaded, needed to be dealt with by the Plaintiff.
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I raised both of these issues with the solicitor for the Defendants who appeared on 15 July 2016. What I said was that if I did not hear on the next occasion, which is today, what actual defence the Defendants have, I was going to strike this Defence out and the Plaintiff would be entitled to get default judgment.
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Mr Brennan said he was only retained in this matter this morning. I note that an affidavit was filed from the second defendant on 28 July 2016. That affidavit does not deal at all with the estoppel claim in the Defence. The affidavit, in effect, seeks some time for the Defendants to resolve their financial problems by either the sale of the farm which is said to be on the market, or by an application to access early the first defendant's superannuation, or for both reasons. Mr Brennan says if he had been brought into the matter earlier, the affidavit may well have contained additional material relating to the estoppel.
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Mr Pillay opposes any further adjournment in the matter, partly by reason of what transpired on the last occasion and partly by the correspondence that ensued as a result of the Defence being filed suggesting that no defence was disclosed.
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Although it is a considerable indulgence to the Defendants in all the circumstances, I consider I should give them one more short period to enable them to plead a defence to the claim if they have one.
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The present Defence filed 16 June 2016 will be struck out. If the Defendants wish to file a further Defence, they are to serve a copy of the proposed Defence by close of business on Wednesday 10 August 2016, and to make application on 12 August 2016 before me to file that Defence. It goes without saying that if matters in the Defence are raised concerning representations or aspects of any loan agreement, there will need to be evidence to support the matters before any Amended Defence will be allowed to be filed. If no Defence is permitted to be filed on Friday 12 August, the Plaintiff will be permitted to obtain default judgment for possession of the land.
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The matter is stood over to Friday 12 August at 9.30 before me. The parties, in the meantime, have liberty to apply on two days' notice.
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Decision last updated: 01 August 2016
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