National Australia Bank Ltd v Artup
[2017] NSWSC 1164
•31 August 2017
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Ltd v Artup [2017] NSWSC 1164 Hearing dates: 31 August 2017 Date of orders: 31 August 2017 Decision date: 31 August 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence filed 13 October 2016 struck out.
2. Plaintiff granted leave to move for default judgment.Catchwords: REAL PROPERTY – mortgages – possession of land – defence filed does not disclose defence to claim – defence seeks to rely on unfiled cross-claim to set-off damages – repeated failures to comply with court orders to file cross-claim – defence struck out Category: Procedural and other rulings Parties: National Australia Bank Ltd (Plaintiff)
Gregory Hilton Artup (First Defendant)
Joady Ann Artup (Second Defendant)Representation: Counsel:
Solicitors:
R Lewin (Plaintiff)
M Konda(Defendants)
Dentons Australia (Plaintiff)
Gregory Hilton Artup (Defendants)
File Number(s): 2016/254274 Publication restriction: Nil
Judgment
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These proceedings arise out of a number of loans which were made by the plaintiff to the defendants on 23 July 2003, 25 July 2003, 4 March 2004 and a business cheque facility provided in October 2003. The loans were secured by a mortgage over a property in Evelyn Avenue, Bundanoon. Default took place in relation to these loans in May 2016. There was non-compliance with a section 57 notice and the proceedings were commenced on 24 August 2016. The amounts owing to the plaintiff are in the vicinity of a little under 2 million dollars in total.
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The first defendant is a solicitor of this Court. He filed a defence on behalf of both defendants on 13 October 2016 which did not plead to a number of the historical allegations in the statement of claim. In respect of each allegation that they owed a particular amount of money he pleaded "not admitted" and then went on to say that in respect of those paragraphs the defendants have a cross-claim which will exceed the amounts said to be owing in those paragraphs.
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On 28 February 2017 the Registrar ordered by consent that any cross-claim to be filed by the defendants was to be filed and served by 7 April 2017. That did not occur. On 18 April 2017 the Registrar ordered by consent that any cross-claim was to be filed and served by 2 May 2017. That did not occur.
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Thereafter the proceedings were stood over on a number of occasions by the Registrar until they were referred to me by the Registrar on 27 June for judicial directions. They first came before me on 19 July 2017. I was told that at that time the parties were negotiating and for that reason I stood the proceedings over to 21 August. I was told that a cross-claim would be served. It was not.
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On 21 August the proceedings came before me again for directions and I ordered that the defendants were to file and serve any cross-claim and an amended defence, which I was told might be necessary, by 25 August 2017.
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This morning I am told that no amended defence will be filed but a draft cross-claim has been sent to the plaintiff. However, the direction I gave, which was the third time the Court has ordered a cross-claim to be filed, has not been complied with.
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The plaintiff now asks that the defence be struck out as not disclosing any defence to the claim. That is demonstrably so on the face of the document. I take into account also that the first defendant is, as I have said, a solicitor of this Court so that there can be no question that the defence is in an unsatisfactory state because the defendants do not have legal knowledge or assistance.
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When there is no cross-claim put forward by way of a defence, as the defence anticipates, I consider that the defence filed 13 October 2016 should be struck out.
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I am not prepared to make any further directions for the filing of a cross-claim. The plaintiff is free to move for default judgment. If the defendants wish still to file a cross-claim, it will be necessary for them to file a notice of motion supported by an affidavit which, amongst other things, will need to explain the extreme delays and the failures to comply on three occasions with the Court orders.
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Decision last updated: 31 August 2017
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