Pepper Finance Corporation Limited v Ha

[2023] NSWSC 824

Supreme Court

New South Wales

Medium Neutral Citation:

Pepper Finance Corporation Limited v Ha [2023] NSWSC 824

Hearing dates:

13 July 2023

Date of orders:

13 July 2023

Decision date:

13 July 2023

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order, pursuant to r 14.28 of the UCPR, that the defence filed 14 June 2023 be struck out.

(2)   List the matter for further directions on 26 July 2023.

(3)   Direct that, on or before 25 July 2023, 4PM, the plaintiff and defendant file and serve any proposed orders and submissions in support of those orders limited to no more than two pages that are to be sought on 26 July 2023.

Catchwords:

REAL PROPERTY – possession of land – default under mortgage – where default admitted – where defence discloses no defence to the claim for possession – defence struck out

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Pepper Finance Corporation Limited (plaintiff)
Kathy Ha (defendant)

Representation:

Counsel:
R Rositano (plaintiff)
C Anderson (defendant)

Solicitors:
Dentons (plaintiff)

File Number(s):

2023/164387

Publication restriction:

Nil

Judgment Ex Tempore

1. By statement of claim filed 23 May 2023, Pepper Finance seeks a range of relief including possession of land known as 41 Huntingdale Avenue Lansvale, NSW; leave to issue a writ of possession, and judgment against the defendant in the sum of $661,367.03. This is the amount said to be owing under the agreement as at 8 May 2023.

2. Pepper Finance loaned money to the defendant pursuant to a written agreement dated 16 November 2018. A mortgage was granted over the property securing the defendant’s obligation under the agreement.

3. On 14 June 2023, the defendant filed a defence to the claim.

4. The defence, which was drafted by the defendant and verified by her, is not in a proper form and what is sought to be raised is, for the most part, unclear. One paragraph of the defence (par 2) in part reads:

2. defendant is behind $72,518.96 to the plaintiff the defendant offered $22,000 upfront and is happy to sell the property to repay the whole amount of money outstanding to the plaintiff. plaintiff not allowed defendant to sell the property as defendant already have three caveats on the property. defendant already have 3 buyers and like to sort out an arrangement with the plaintiff but very hard to deal with the plaintiff …

5. The defendant therefore admits default under the agreement, and under the terms of the mortgage.

6. The plaintiff, by application made before me today, seeks to strike out the defence.

7. Pleadings concerning possession of land are specifically dealt with in r 14.15 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’) and, in relation to any defence to a claim for possession of land, by r 14.15(3). Put simply, by r 14.15(3), a defendant “must plead specifically every ground of defence on which he or she relies …”. These rules are supplementary to the specific ones contained in r 14 generally.

8. Otherwise, the defence does not plead any matter which, if proved, would provide a defence to a claim for possession; and it is, more generally, non-compliant with rr 14.6-14.7 and 14.15(3) of the UCPR. Additionally, the failure of the defendant to specifically plead the true basis of any defence is antithetical to the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act 2005 (NSW).

9. The Possession List Practice Note makes clear that at judicial directions hearings, the judge assigned to review the matter will carefully scrutinise the pleadings and, where appropriate, make orders striking out pleadings which fail to conform with the pleading requirements that I have identified. Further the Practice Note makes clear that orders of that kind may be made irrespective of whether a notice of motion seeking such an order has been filed and served: PN SC CL 6, par 17.

10. In the circumstances, I make the following orders:

1. Order, pursuant to r 14.28 of the UCPR, that the defence filed 14 June 2023 be struck out.

2. List the matter for further directions on 26 July 2023.

3. Direct that, on or before 25 July 2023, 4PM, the plaintiff and defendant file and serve any proposed orders and submissions in support of those orders limited to no more than two pages that are to be sought on 26 July 2023.

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Decision last updated: 13 July 2023