NAB v Meyers - [2008] NSWSC 247

CITATION: NAB v Meyers [2008] NSWSC 247

HEARING DATE(S): 14 March 2008

JUDGMENT DATE :
27 March 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The defence is struck out.
(2) I enter judgment that the plaintiff is entitled to possession of the property as set out in paragraph [1] of the statement of claim.
(3) A writ of possession is to issue, such writ not to issue before 22 May 2008.
(4) The second defendant is to pay the plaintiff's costs of the proceedings.

CATCHWORDS: STRIKE OUT DEFENCE - Summary judgment

LEGISLATION CITED: Live Insurance Act 1945
Real Property Act 1900
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Goodlen Pty Ltd v BP Australia Pty Ltd (2004) 183 FLR 323

PARTIES: National Australia Bank Limited (Plaintiff)
John Meyers (First Defendant)
Marilyn Margaret Meyers (Second Defendant)

FILE NUMBER(S): SC 14776/2007

COUNSEL: J E Thomson (Plaintiff)
L E Judge (Second Defendant)

SOLICITORS: Dibbs Abbott Stillman (Plaintiff)
Demaine & Associate (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 27 MARCH 2008

14775/2007 - NATIONAL AUSTRALIA BANK LIMITED
v JOHN MEYERS
JUDGMENT (Strike out defence; summary judgment)

1 HER HONOUR: By notice of motion filed 31 January 2008, the plaintiff seeks judgment on the statement of claim pursuant to Part 13.1 of the Uniform Civil Procedure Rules 2005; or in the alternative, that the defence of Mrs Meyers be struck out pursuant to Part 14.28 of the Uniform Civil Procedure Rules.

2 The plaintiff is the National Australia Bank Limited (the Bank). The first defendant is John Meyers (Mr Meyers). Mr Meyers has not taken any active role in these proceedings. The second defendant if Marilyn Margaret Meyers (Mrs Meyers). The Bank relied upon the affidavit of Joseph Ritchie sworn 24 January 2008. Mrs Meyers relied upon her affidavit sworn on 13 March 2008.

3 The Bank seeks firstly, possession of the whole of the land comprised in Certificate of Title Folio Identifier xxxxxx and known as xx xxxx, xxxxxx; secondly leave to issue a writ of possession to enforce the judgment; and third costs on a solicitor and client (or indemnity) basis.

4 At para [8] of the statement of claim the Bank pleads that on about 25 June 2007, it served on the Mr and Mrs Meyers a default notice dated 19 June 2007 demanding payment within 31 days in the sum of $19,893.10, being the total amount of repayments outstanding under the home loan agreement. The notice served of Mr and Mrs Meyers also constituted notice under s 57(2)(b) of the Real Property Act 1900. It is common ground that the Meyers have defaulted in making loan repayments.

5 At [6] of the defence, Mrs Meyers pleads that para [8] of the statement of claim is not admitted, save that she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NAB v Meyers

Details

AGLC: NAB v Meyers [2008] NSWSC 247
Case: [2008] NSWSC 247
Decision Date: 27 March 2008

CaseChat Overview and Summary

The matter between the National Australia Bank Limited and Ms Meyers was heard by the Federal Circuit Court. The dispute centred on the bank's application to strike out Ms Meyers' defence to a claim for the recovery of a debt. The bank sought to have the defence struck out on the basis that it was frivolous and vexatious, and thus an abuse of process. Ms Meyers argued that her defence was valid and should not be struck out. The court was required to determine whether the defence was frivolous and vexatious and whether striking it out would be an appropriate remedy.

The court examined the nature and content of Ms Meyers' defence and assessed whether it had any reasonable prospect of success. The defence included various claims related to the bank's conduct, including allegations of unconscionable conduct and misrepresentation. The court found that, while the defence was not well-founded, it was not frivolous or vexatious. The court held that the defence, although unlikely to succeed, did not meet the threshold for being struck out as an abuse of process. The court also noted that the bank had not demonstrated any prejudice that would warrant a striking out order.

As a result, the bank's application to strike out the defence was dismissed. The court held that the defence should not be struck out, and the matter would proceed to trial. The court emphasised the importance of allowing parties to present their defences, even if they are unlikely to succeed, unless they are clearly frivolous or vexatious. The court did not make any orders regarding costs.

Orders