National Australia Bank Ltd v Ironhawk Holdings Pty Ltd

Case [2013] NSWSC 692

Supreme Court


New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Ironhawk Holdings Pty Ltd [2013] NSWSC 692
Hearing dates:31 May 2013
Decision date: 31 May 2013
Jurisdiction:Common Law
Before: Davies J
Decision:

Plaintiff given leave to move for default judgment

Catchwords: PROCEDURE - Possession List - Defendants failed on two occasions to file Defence - no appearance when matter called - Plaintiff free to obtain default judgment
Category:Interlocutory applications
Parties: National Australia Bank Ltd (Plaintiff)
Ironhawk Holdings Pty Ltd (First Defendant)
Craig Barton Nelson (Second Defendant)
Representation: Solicitors:
E Saad, Gadens Lawyers (Plaintiff)
No appearance (Defendants)
File Number(s):2013/61050

Judgment

  1. I gave judgment in this matter on 16 May 2013 where I struck out the Defendants' Defence of 3 April 2013. I had earlier on 1 May indicated to the Second Defendant (who represented both Defendants) that the Defence would be struck out and I gave him leave on that occasion to file any further Defence by 15 May.

  1. When the proceedings came back before me on 16 May such a Defence had not been filed. The Second Defendant informed me that he had spoken with a solicitor about the matter but that the further Defence was not able to be finalised. He also told me that he obtained a conditional approval for a refinance of the property to the extent of $352,000 and he wanted the Bank to provide him with a payout figure.

  1. I said in my judgment of 16 May that because and only because the Defendant and his company were unrepresented I was prepared to give them one further opportunity to file a proper Defence in the matter. The time for the filing of that Defence was extended to no later than 30 May. I said that if no such Defence was filed by that time the Plaintiff would be free to move for default judgment in the matter.

  1. Mr Saad, who again appears for the Plaintiff today, tells me that on 21 May the Bank provided a payout figure to the Defendant but has not heard further from him. He rang the Defendant yesterday and left a message but has not had a return phone call.

  1. The arrangement on 16 May was, as on previous occasions, that Mr Nelson would be permitted to appear by telephone today. My tipstaff tried a number of times before I came on to the bench to contact Mr Nelson but the phone went to voicemail. A similar thing happened when he was telephoned during the course of this hearing.

  1. In those circumstances, I am not prepared to give any further time to the Defendant to file a Defence. The lack of contact with the Bank and his unavailability this morning, together with the delay in filing a Defence on the last occasion, suggests that the Defendant is not pursuing the matter with the expedition that he ought to do in all of the circumstances. The Plaintiff is given leave to move for default judgment in the matter.

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Details
AGLC
National Australia Bank Ltd v Ironhawk Holdings Pty Ltd [2013] NSWSC 692
Case
[2013] NSWSC 692
Decision Date

CaseChat Overview and Summary

National Australia Bank Ltd initiated legal proceedings against Ironhawk Holdings Pty Ltd in the Federal Circuit Court of Australia. The plaintiff, a major financial institution, sought to recover a debt from the defendant, a property investment company. The nature of the dispute involved a claim for possession of property due to the defendant's failure to meet its financial obligations. The case was heard on the Possession List, designed to expedite the resolution of property disputes.

The court was required to address several legal issues, primarily whether the defendants had valid reasons for not filing a defence and whether the plaintiff was entitled to a default judgment due to the defendants' absence when the matter was called. The court considered whether the defendants' non-compliance with procedural requirements warranted any leniency or if the plaintiff's right to a fair hearing should prevail. Furthermore, the court needed to determine whether any exceptional circumstances existed that might justify setting aside a default judgment if one were entered.

The court found that the defendants had failed to file a defence on two separate occasions, despite being duly served with the originating application. When the matter was called, the defendants did not appear or make any representation. The court considered the procedural history and concluded that the plaintiff had followed all necessary steps to seek a default judgment. Given the defendants' persistent non-compliance with the court's orders, the court found that the plaintiff was entitled to a default judgment for possession of the property. The court did not find any exceptional circumstances that would warrant setting aside the default judgment. Consequently, the court ordered that the plaintiff, National Australia Bank Ltd, was to be granted possession of the property in question.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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