National Australia Bank Limited v Strik

[2009] NSWSC 184

CITATION:	National Australia Bank Limited v Strik [2009] NSWSC 184
HEARING DATE(S):	13 March 2009
JUDGMENT DATE :	13 March 2009
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	13 March 2009
DECISION:	Plaintiff granted summary judgment.
CATCHWORDS:	MORTGAGES - claim for possession of land following mortgage default - Defendant bankrupt - Official Trustee did not wish to be heard - whether bankrupt Defendant had standing - summary judgment granted
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Farrow Mortgage Services Pty Ltd v Winfield (1992) 2 QdR 282 Bendigo Bank Ltd v Demaria [2001] VSC 218 Re-Engine Pty Ltd v Fergusson (2007) 209 FLR 1
PARTIES:	National Australia Bank Limited (Plaintiff) Bradley William Strik (Defendant)
FILE NUMBER(S):	SC 15926/08
COUNSEL:	Mr JM White (Plaintiff) Defendant in person
SOLICITORS:	Dibbs Barker (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

Johnson J

13 March 2009

15926/08 National Australia Bank Limited v Bradley William Strik

JUDGMENT

1 JOHNSON J: This is an application by the Plaintiff, National Australia Bank Limited, pursuant to Pt 13 r 1 Uniform Civil Procedure Rules 2005 (“UCPR”) for summary judgment in proceedings brought against the Defendant, Bradley William Strik.

2 The proceedings were initiated by a Statement of Claim filed on 11 November 2008 in which claim was made for possession of land at [xxx], Wollongong. The proceedings are based upon alleged default under a mortgage with respect to that property, as to which the Defendant was, as at December 2008, the owner. I qualify the Defendant's status because, on 4 December 2008, the Defendant became bankrupt following the filing by him of a debtor’s petition. Evidence has been tendered by the Plaintiff that the Official Trustee has been informed of today's application, and has indicated that there would be no appearance at the hearing of the motion and that the Official Trustee would abide by whatever order the Court deems fit.

3 On 6 January 2009, the Defendant purported to file a Defence which is self-evidently bad. The Defence raised no issue which could operate as a viable defence, and was founded upon the suggested inability of the Defendant to be liable under the mortgage because of historical features concerning the life and death of Jesus Christ. That Defence will in due course be struck out.

4 I note that the Defence was filed after the Defendant had become bankrupt. There is no sign that the Official Trustee had any knowledge of the filing of that Defence.

5 Pursuant to r 13.1 UCPR, the Plaintiff may seek summary judgment if there is evidence of the facts on which the claim is based and there is evidence given by the Plaintiff, or by some responsible person, of the belief of that person that the Defendant has no defence to the claim. If the claim for summary judgment is disputed, it is necessary for the Plaintiff to show there is no real issue to be tried.

6 The Plaintiff has tendered on the application evidence in various forms. An affidavit of Mark Elms sworn 3 March 2009 has been read. That affidavit demonstrates clearly the history of the loan arrangement, the default by the Defendant under that loan arrangement, and otherwise demonstrates an entitlement by the Plaintiff to judgment. The affidavit also satisfies the requirements that there be evidence of a belief that the Defendant does not have a defence to the Statement of Claim.

7 I have observed that the filed Defence is clearly bad. The content of that Defence fortifies the conclusion that there is no defence to the claim.

8 Mr White of counsel, who appears for the Plaintiff, has drawn the Court's attention to provisions of the Bankruptcy Act 1966 (Cth) and authorities which touch upon the question of the standing of the Defendant to appear and defend these proceedings personally.

9 I am satisfied that the Defendant has no more than a bare legal interest in the Wollongong property which he holds for the benefit of the Official Trustee, and that he has no interest in the proceedings brought against him for possession of the property and has no standing to be heard in defence of the Plaintiff’s claim: Farrow Mortgage Services Pty Ltd v Winfield (1992) 2 QdR 282 at 285; Bendigo Bank Ltd v Demaria [2001] VSC 218 at [18]. Mr White has drawn the Court’s attention, appropriately, to the decision of Dodds-Streeton J of the Victorian Supreme Court in Re-Engine Pty Ltd v Fergusson (2007) 209 FLR 1 at 9-12 [50-[68], where reference was made to a number of decisions, including Farrow Mortgage Services Pty Ltd v Winfield and Bendigo Bank Ltd v Demaria. Dodds-Streeton J observed at 12 [67]-[68] that, although the authorities indicate that a bankrupt does not have locus standi or an entitlement to be heard, the Court has a discretion to permit a person to give evidence in answer to allegations of personal misconduct and that, in the unusual circumstances of that case, it would promote the due administration of justice to permit the person to be heard. Nothing said by her Honour undermines the principle concerning standing expressed in Farrow Mortgage Services Pty Ltd v Winfield and Bendigo Bank Ltd v Demaria.

10 The appropriate conclusion is that the Defendant has no standing to appear and make submissions and to tender evidence on the application. The Official Trustee has made clear its view that it does not wish to be heard and that the orders to be made are a matter for the Court.

11 Despite this conclusion, I permitted the Defendant, who has attended today, to explain his position to the Court. He handed up an affidavit sworn by him on 13 March 2009, which I received informally and considered. The affidavit does not, in any material way, advance his cause. If the Defendant had standing to appear in the matter and to rely upon this evidence, it would not have assisted him. It is clear that the Defendant has a practical interest in the outcome of the matter, given his occupation of the Wollongong property. However, I am satisfied, as a matter of law, that he has no standing.

12 I am satisfied, on the evidence which has been adduced, that the requirements for summary judgment under Pt 13 r 1 UCPR have been made out.

13 It is appropriate that an order be made that the Defence filed on 6 January 2009 be struck out. I will make orders striking out the Defence, giving the Plaintiff judgment for possession of the subject property, and granting leave to issue a writ of possession to enforce the judgment.

[Submissions on costs]

14 I make Orders 1, 2, 3 and 4 in accordance with the Short Minutes of Order which I have signed and dated today. I have amended order 1 so that it reads "Defendant's Defence be struck out". Otherwise, Orders 2, 3 and 4 are made as sought.

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