National Australia Bank Limited v Loccisano
[2014] NSWSC 1347
•12 September 2014
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Limited v Loccisano [2014] NSWSC 1347 Hearing dates: 12/09/2014 Decision date: 12 September 2014 Jurisdiction: Common Law Before: RS Hulme AJ Decision: 1. Set aside the judgments against the second, third and fourth defendants.
2. Stay proceedings on the judgment against the first defendant.
3. Set aside the writs of possession which have issued.
Catchwords: REAL PROPERTY - mortgage - application to set aside default judgment for possession - possibility of unconscionable conduct Legislation Cited: Contracts Reviews Act 1980 (NSW) Category: Procedural and other rulings Parties: National Australia Bank Limited (Plaintiff)
Pasquale Loccisano (First Defendant)
Filomena Loccisano (Second Defendant)
Maria Loccisano (Third Defendant)
Josephine Loccisano (Fourth Defendant)Representation: Counsel:
D R Sulan (Plaintiff)
A McQuillen (Second and Third Defendants)
Solicitors:
DibbsBarker Lawyers (Plaintiff)
Rankin Ellison (First Defendant)
Sullivan Fernan (Second and Third Defendants)
Deutsch Partners (Fourth Defendant)
File Number(s): 2014/83717
Judgment
HIS HONOUR: This is an application to set aside default judgment for possession in respect of five properties mortgaged to the plaintiff in pursuance of a number of agreements either for loan or guarantee which were executed by the defendants to the proceedings. It would seem that until very recently all instructions given to solicitors acting or purporting to act on behalf of the defendants were given by the first defendant, Peter Loccisano. The other defendants are, respectively, his mother and sisters.
It is apparent that in significant degree the agreements, whether for loan or guarantee, were entered into at the instigation of Mr Peter Loccisano for the purposes of obtaining funds to support businesses he was running. I do not mean to suggest that was the only purpose, but it was clearly a major purpose.
I am satisfied that the second, third and fourth defendants signed at least many of the documents, if not all of them, without concerning themselves with what the documents said because they trusted Mr Peter Loccisano .
I am satisfied also that despite the statements in many of the documents that the person signing had received legal advice and had signed in the presence of an identified witness, that that did not occur.
Those remarks lead to the conclusion that, at least at a prima facie level, the bank left to Mr Peter Loccisano the task of obtaining the signatures of his relatives to the documents, contenting itself with the form of the documents and the fact of the signatures, and without involving itself in any way in taking steps to see that the persons other than Mr Peter Loccisano understood the liabilities they were entering into.
In the circumstances, the defendants, other than Mr Peter Loccisano, have an arguable case for relief under the Contracts Review Act, 1980 or alternatively pursuant to the equitable doctrine of unconscionability.
There has been some delay in the defendants addressing their obligations once served with the statement of claim, though even on that score there is scope for wondering whether they were ever properly served.
A notice of appearance was filed on their behalf, it would seem, at the instigation of the first defendant Mr Peter Loccisano.
It is equally clear that there were communications on their behalf with the bank and with a view to the matters being defended.
Insofar as there has been default on the part of the defendants, it does not seem to me it is default of a nature such that they should not be allowed the opportunity - albeit late - of having the real issue between the plaintiff and themselves determined.
Thus, I am satisfied that adequate reasons exist which should cause me to exercise my discretion in setting aside the judgments which have been obtained.
So far as Mr Peter Loccisano is concerned, although there is no application by him in that regard, because his liability is co-joint with some of the other defendants, he will derive the benefit of my decision. However I cannot think of, and it has not been suggested there is, any practical way where that result can be avoided.
In these circumstances, and subject to any matter of detail which the parties may wish to raise, I think the appropriate orders for me to make are:
1. Set aside the judgments against the second, third and fourth defendants.
2. Stay proceedings on the judgment against the first defendant.
3. Set aside the writs of possession which have issued.
I should also give some directions for the filing of defences but I will hear the parties on that issue.
As presently advised I think there should be some order requiring the defendants to pay the plaintiff's costs of entering judgment but I will hear the parties on the question of costs.
(Submissions as to costs and remaining matters.)
HIS HONOUR: The other orders I make are these:
4. Direct the plaintiff to serve on the solicitors for the defendants within 14 days a comprehensive list of the documents upon which the plaintiff proposes to rely in chief, together with either a copy of those documents or specification of the previous provision of those documents during the course of the proceedings.
5. I order the defendants, other than the first defendant, to file their defences within 28 days from now.
6. I direct the plaintiff to provide its evidence-in-chief by affidavit served within six weeks from today.
7. I order the defendants to provide their evidence in defence by affidavit served within 14 weeks of today.
8. I direct the plaintiff to provide its evidence in reply by affidavits served by 13 February 2015.
9. I stand the matter over to the registrar's list on 13 March.
10. I direct that so far as possible the evidence of the defendant refer to the documents provided by the plaintiff, or identified in the plaintiff's evidence-in-chief, without the provision of further copies of such documents.
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Decision last updated: 02 October 2014
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