National Australia Bank Ltd v Ironhawk Holdings Pty Ltd
[2013] NSWSC 575
•16 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Ltd v Ironhawk Holdings Pty Ltd [2013] NSWSC 575 Hearing dates: 16 May 2013 Decision date: 16 May 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) Defence filed 3 April 2013 is struck out.
(2) Any further Defence is to be filed and served by 30 May 2013.
Catchwords: PROCEDURE - Possession List - early judicial directions - no proper defence - no question of principle Category: Interlocutory applications Parties: National Australia Bank Ltd (Plaintiff)
Ironhawk Holdings Pty Ltd (First Defendant)
Craig Barton Nelson (Second Defendant)Representation: Solicitors:
Gadens Lawyers (Plaintiff)
Craig Barton Nelson (in person) (First and Second Defendants)
File Number(s): 2013/61050
Judgment
These proceedings commenced on 25 February 2013 seeking possession of a property at 46 Echo Drive, Harrington and claiming the total amount of interest outstanding under a loan entered into with the Bank following default and failure to comply with a s 57 notice served on or about 26 November, 2012.
The First Defendant is a company and the Second Defendant, Craig Nelson, is the sole shareholder and director of that Company. Because neither Defendant has legal representation I have permitted the Second Defendant to appear on behalf of the Company.
The Defence filed on 3 April 2013 said in response to most of the paragraphs of the Statement of Claim that the Defendant was unable to plead to the paragraphs because particulars had not been provided of the matters contained in them.
No defence of any sort is demonstrated in the Defence that has been filed.
I have sought to ascertain from Mr Nelson, both today and when the matter was before me on 1 May, what his defence to the claim is. He has informed me that he needed documents from the Bank so that he could attempt to get legal advice to see whether he had a defence. He has, however, agreed that the Company did borrow the money so that the Company could buy an investment property, that he guaranteed it and that there has been a default to the Bank.
On 1 May I directed that any further defence that he had was to be filed and served by 13 May. This has not happened. He says that he has spoken with a solicitor but the further defence is not yet able to be finalised. In the meantime, he has obtained conditional approval for a refinance of the property to the extent of $352,000.
He is anxious to get a pay-out figure from the Bank and a breakdown of the amounts said to be outstanding.
Because, and only because, the Defendants are unrepresented in the proceedings, I am prepared to give the Defendants one further opportunity to file a proper defence in the matter.
In the meantime, the Defence of 3 April 2013 does not comply with the Rules of the Court and does not demonstrate any defence to the claim. It is, accordingly, struck out.
Any further Defence is to be filed and served by no later than 30 May 2013 and if no such Defence is filed by that time, the Plaintiff is free to move for default judgment in the matter.
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Decision last updated: 16 May 2013
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