National Australia Bank Ltd v Beaumont
[2014] NSWSC 1039
•31 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Ltd v Beaumont [2014] NSWSC 1039 Hearing dates: 31 July 2014 Decision date: 31 July 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence dated 17 June 2014 is struck out.
2. Leave to the Plaintiff to move for default judgment.
Catchwords: REAL PROPERTY - possession of land - early judicial directions - defence admits principal elements of claim - defence struck out Category: Interlocutory applications Parties: National Australia Bank Ltd (Plaintiff)
Richard George Beaumont (Defendant)Representation: Counsel:
R Lewin (Plaintiff)
No appearance (Defendant)
Solicitors:
Gadens Lawyers (Plaintiff)
Savage & Love, Solicitors (Defendant)
File Number(s): 2014/86497
Judgment
The Plaintiff seeks possession of land known as Lot 53 Yarrawonga Street, Macksville. The land is mortgaged by the Defendant to the Plaintiff to secure a loan agreement dated 8 July 2008 in respect of which $170,000 was advanced to the Defendant. The terms of the loan agreement as pleaded stipulated that the Plaintiff could cancel the facility at any time and require the Defendant to repay the money owing under the agreement immediately.
The Statement of Claim pleads further that by notice dated 28 August 2013 the Plaintiff cancelled the facility and demanded repayment of the money. That money has not been repaid.
The Defendant filed a Defence on 17 June 2014 in which he admitted the loan agreement and the advance of money, that the Bank gave a notice to cancel the facility and that the Defendant has not paid moneys to the Plaintiff. The only point of contention in the Defence is that the Defendant denies having received the s 57 notice which is alleged to have been served on or about 11 October 2013. However, that is not material for the purposes of possession.
On the last occasion Ms Finnerty appeared as the agent for the Defendant. She informed me that there were some negotiations going on between the Defendant and the Plaintiff. The offer that had been made or was to be made by the Defendant was that another parcel of land was to be offered as security for the loan.
I indicated to Ms Finnerty that the Defence did not appear to provide a defence to the claim and I asked her if there was any other defence. She was not able to tell me on the basis of her instructions at that time. I said that the matter would be stood over to today and there was to be provided by the Defendant an affidavit either detailing the negotiations and the stage they had reached and/or what, if any, defence the Defendant had to the claim. No such affidavit has been provided to the court, nor to the solicitors for the Plaintiff. There is no appearance for the Defendant today.
I indicated that if no such affidavit was forthcoming the Defence filed on 17 June would be struck out today. The Defence does not disclose a defence to the Plaintiff's claim for possession. Accordingly, the Defence of 17 June 2014 is struck out.
**********
Decision last updated: 31 July 2014
0
0
0