National Australia Bank Limited v Abijah Investments Pty Ltd
[2013] NSWSC 1715
•20 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Limited v Abijah Investments Pty Ltd [2013] NSWSC 1715 Hearing dates: 20 November 2013 Decision date: 20 November 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Defence struck out.
The plaintiff is now at liberty to pursue default judgment.
The defendants are not to file any defence without prior leave of the Court.
Catchwords: PROCEDURE - possession - application to strike out defence - granted Category: Procedural and other rulings Parties: National Australia Bank Limited
ACN 004 044 937 (Plaintiff)
Abijah Investments Pty Ltd
ACN 145 185 226 (First Defendant)
Nadir Giris Zaki Tadrous (Second Defendant)Representation: Solicitors:
Mr Pong
Kemp Strang (Plaintiff)
File Number(s): 2013/268704 Publication restriction: None
EXTEMPORE Judgment
HER HONOUR: Today the plaintiff Bank seeks an order striking out the defence filed by the first and second defendants on 16 October 2013 as disclosing no reasonable defence to the claims advanced in the statement of claim by which these proceedings were commenced.
The parties were before Registrar Bradford on 31 October when the defendants were represented by counsel. Orders were then made in relation to the provision of particulars. Those particulars have been provided and on 6 November the plaintiff wrote to the defendants offering to resolve the matter on the basis that consent judgment be entered on the footing that it would not be enforced until February 2014, so that the loan could be refinanced.
There has been no response to that offer and no appearance today for the defendants in circumstances where they were informed that if the offer was not accepted, an application to strike out the defence would be made today.
It is clear from the terms of the defence filed that it does not disclose any real defence to the statement of claim which pleads a loan of some $400,000 odd secured over a property at Edensor Park owned by the first defendant and guaranteed and indemnified by the second defendant. Those borrowings have fallen into arrears with the result that repayment of the loan has been sought.
In those circumstances it is apparent that the order striking out the defence which the plaintiff now seeks must be made, the defendants having decided not to appear to defend that application. Accordingly, I order that the defence be struck out.
I further order that the plaintiff is now at liberty to pursue default judgment and the defendants are not to file any further defence without prior leave of the Court.
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Decision last updated: 21 November 2013
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