National Australia Bank v Nomchong

[2021] NSWSC 389

Supreme Court

New South Wales

Medium Neutral Citation:

National Australia Bank v Nomchong [2021] NSWSC 389

Hearing dates:

31 March 2021

Date of orders:

31 March 2021

Decision date:

31 March 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the defendant's defence is struck out.

(2) Under Rule 13.1 of the UCPR, summary judgment for the plaintiff for possession of the land

(3) The defendant to deliver vacant possession of the land to the plaintiff no later than 28 May 2021.

(4) The plaintiff has leave to issue a writ of possession in respect of the property.

(5) The execution of any such writ is stayed until up to and including 28 May 2021.

Catchwords:

PROCEDURE – application to strike out plaintiff’s defence – exercise of the Court’s power for summary judgement for possession

Legislation Cited:

Uniform Civil Procedure Rules 2005 rr 13.1; 14.28

Cases Cited:

N/A

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

National Australia Bank (Plaintiff)
Gregory James Nomchong (Defendant)

Representation:

Counsel:
L. Hatton (solicitor) (Plaintiff)
G.J. Nomchong (Defendant in person)

Solicitors:

File Number(s):

2019/62808

Publication restriction:

N/A

EX TEMPORE Judgment (revised)

1. These are proceedings for possession of land. The plaintiff is a registered first mortgagee and the defendant is the registered proprietor of real property land covered by strata titles legislation and known as XXXXX .

2. The mortgage was signed on 9 March 2006 to secure a loan that was the subject of a contemplated loan agreement later signed on 4 May 2006, with the loan moneys being advanced on or about 9 May 2006.

3. It seems that the mortgage account was conducted satisfactorily by the defendant until 2018 when, I infer, he appears to have fallen into financial difficulties. By 8 November 2018 the loan repayments were $13,910.90 in arrears. A letter of demand was sent on 9 November 2018 allowing a period of 31 days to bring the account back into order.

4. That the defendant did fall into financial difficulties in that year is borne out by the fact that on 28 November 2018 a sequestration order was made, the defendant became bankrupt and a trustee was appointed. The trustee, on 5 December, lodged a caveat over the property. For these reasons the defendant was unable to bring the account into good order by the due date and therefore he was in default and a demand was made for the repayment of the full amount due.

5. Statutory notices were sent out on 16 January 2019 and proceedings were commenced on 26 February 2019. Due to the complication of the bankruptcy, the bank stayed its hand until August 2019 when the trustee advised the bank that he expected the bankruptcy would be annulled. It was hoped, apparently, that if that occurred the defendant might be able to put himself in a position to make a proposal to the bank to either clear the debt or refinance.   

6. The bankruptcy was annulled, as expected, on 3 December 2019 and the bank notified the defendant that it proposed to move to strike out the defence he had filed and for summary judgment. An amended defence was filed on 20 January 2020 and there were some negotiations between the parties about the defendant arranging to pay out the bank. Initial steps were taken to attempt to sell the property at a price satisfactory to the defendant under his own steam.

7. Of course, as is notorious, in March 2020 the COVID-19 pandemic overwhelmed the community and as part of the response to that banks generally did not take steps to sell borrowers up. But, notwithstanding the period of grace that that allowed the defendant and notwithstanding his efforts to sell the property, he was unable to do so in terms satisfactory to him and to the bank. Accordingly, by motion dated 22 February 2021 the bank, as it had foreshadowed so long ago, moved to strike out the defendant's defences as being clearly untenable and to seek summary judgment for possession.

8. The bank moved on the affidavit of Ms Lauren Hatton, solicitor, affirmed on 22 February 2021, from which document I have drawn the narrative of undisputed fact I have so far recited.

9. The defendant filed his affidavit on 24 March 2021 and made it quite clear that he did not propose to resist the bank's application, subject to being given further adequate time to vacate before execution of any writ. He estimated that he would require six to eight weeks in order to achieve that purpose.

10. The bank again, in a forebearant way, was happy to live with six weeks and proposed 14 May as the final day for possession to be delivered. Mr Nomchong has submitted that he needs until 28 May, and although Ms Hatton has no instructions to agree to that, she has made it quite clear that the bank could live with it, if I so ordered.

11. I am satisfied, from my consideration of the material relied on by the bank and from my consideration of Mr Nomchong's affidavit that, with respect to him, he has no defence, as Ms Hatton has said in compliance with the rules at paragraph 46 of her affidavit.

12. As I have said, I have considered the material for myself and I am satisfied that this is an appropriately clear case for the exercise of the Court's power under Rule 13.1 of the Uniform Civil Procedure Rules2005 by making an order for summary judgment.

13. It seems to me that, although Mr Nomchong has raised some matters of denial in relation to default, when one considers the evidence and also his statement that he did not intend to resist or defend the bank's application, his pleaded defence, essentially denying default, is, in terms of the authorities, “clearly untenable”.

14. In the circumstances, I will make the orders as sought.

1. Under Rule 14.28 of the UCPR the defendant's defence filed on 5 July 2019 and his amended defence filed on 28 July 2020 are struck out.

2. Under Rule 13.1 of the said rules, summary judgment for the plaintiff for possession of the land comprised in certificate of title folio identifier XXXXX , being the land situated at, and known as, XXXXX X.

3. The defendant to deliver vacant possession of the land to the plaintiff no later than 28 May 2021.

4. The plaintiff has leave to issue a writ of possession in respect of the property.

5. The execution of any such writ is stayed until and including 28 May 2021.

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Decision last updated: 16 April 2021