Pepper Finance Corporation Limited v Williams

[2007] NSWSC 1236

CITATION:	Pepper Finance Corporation Limited v Williams [2007] NSWSC 1236
HEARING DATE(S):	01/11/2007
JUDGMENT DATE :	7 November 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	1.Judgment for possession of the land described in the Statement of Claim; 2.Save for paragraphs 12 and 13 thereof, the Cross-Claim is struck out; 3.Particulars of the allegations made in those paragraphs are to be given within 28 days ; 4.The defendant’s Notice of Motion is dismissed ; 5.The defendant is to pay the costs of that Notice of Motion ; 6.Any question of the issue of a writ of possession or a stay is referred to the Registrar;
CATCHWORDS:	Summary judgment for possession - jurisdiction - mediation
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW)
PARTIES:	Pepper Finance Corporation Limited (Pl) Lydia Williams (Def)
FILE NUMBER(S):	SC 12191/06
COUNSEL:	Mr A. Rogers (Pl) In Person (Def)
SOLICITORS:	Kemp Strang (Pl)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

7 NOVEMBER 2007

12191/06 Pepper Finance Corporation Limited v Lydia Williams

JUDGMENT

1 HIS HONOUR: The Plaintiff commenced these proceedings by Statement of Claim. A claim is made for possession of property at Berowra Heights (the property).

2 The plaintiff alleges default by the defendant under a loan secured on the property.

3 It has brought a Notice of Motion seeking Summary Judgment of the claim for possession. This application was referred for hearing on 1 November 2007 (by Registrar Bradford).

4 Although she did not appear before the Registrar, the defendant appeared in person when the matter was called on for hearing. By consent, she was allowed to file in Court a Notice of Motion seeking, inter alia:-

“1. All motions filed by Pepper Finance Corporation be dismissed
2. The Chief Executive Officer of Pepper Finance Corporation settle the matter by way of mediation
3. Pepper Finance Corporation release the property title deeds to the defendant and settle the property matters with the defendant.”

5 Both Notices of Motion were heard together. The plaintiff relied on affidavits which demonstrated a prima facie entitlement to possession of the property. The defendant relied on a document which was headed “Notice of Special Appearance” and which contained an affidavit “Affidavit In Support of Special Appearance”

6 After the affidavits had been read by the Court, the parties then addressed on both Notices of Motion. Following the completion of addresses, the Court reserved its judgment.

7 Before proceeding further, I should mention one matter that was raised in argument and dealt with therein. It was a question of jurisdiction raised by the defendant.

8 The bases of her submission are to be found in the Notice of Special Appearance. In my view, these bases are founded on misconception. Indisputably, the Court has jurisdiction in respect of the plaintiff’s claim for possession.

9 Leaving those matters aside, it might be added that the defendant, by her conduct, has waived any question of jurisdiction. I shall briefly mention certain of the matters that bring about such a waiver. On 27 December 2006, the defendant filed a Notice of Appearance. Thereafter she filed other documents (including a Defence, an Amended Defence, a Cross-Claim, an Amended Cross-Claim, as well as her Notice of Motion). She has made at least three appearances before the Registrar prior to her appearance today. By her conduct, she has submitted to the jurisdiction of the Court.

10 It might be further added that the Uniform Civil Procedure Rules (2005) (NSW) (the Rules) do not permit the filing of a Notice of Special Appearance or any other conditional appearance.

11 I now turn to the plaintiff’s Notice of Motion. The authorities establish that summary relief is only to be granted in what might be described as clear cases. The onus rests with the party seeking such relief.

12 The current pleading relied on by the defendant is an Amended Defence filed on 5 July 2007. A reading of that document does not reveal any matter that gives rise to a defence to the plaintiff’s claim in possession.

13 The evidence that the defendant has put before the Court also does not reveal any matter which would give rise to a defence to the plaintiff’s claim.

14 In these circumstances, I am of the view that the plaintiff has clearly demonstrated an entitlement to summary relief in respect of the claim in possession.

15 The defendant has brought a Cross-Claim in the proceedings. She now proceeds on an Amended First Cross-Clam, which was filed on 29 June 2007. Although the plaintiff sought to have the whole of this document struck out, during submissions, a concession was made that paragraphs 12 and 13 may disclose a cause of action. However, it was also submitted that particulars of those matters was required.

16 A reading of the Cross-Claim discloses that, save for paragraphs 12 and 13, no reasonable cause of action is disclosed therein. Therefore, the balance of the material contained therein does not comply with the Rules and is liable to be struck out.

17 Accordingly, save for what is alleged in paragraphs 12 and 13, the Cross-Claim is struck out. I order that the defendant give particulars of what is alleged in paragraphs 12 and 13 within 28 days.

18 In the light of what has already been said, the relief sought by the defendant in her Notice of Motion is lacking in efficacy and no entitlement to that relief has been made out. In the circumstances, it needs to be dismissed.

19 During her submissions, the plaintiff raised other matters which were not relevant to the plaintiff’s claim. One of these matters was the quantum of the amount claimed to be owing under the loan by the plaintiff. As was made clear to the defendant in submissions, the question of quantum was not a matter that had to be decided in dealing with the claim for possession (the relevant issue was simply one of default and there was indisputable evidence of default). If the defendant wishes to pursue any of these matters, it remains open to her to do so in appropriate proceedings brought by herself (and to seek mediation therein).

20 The orders of the Court are as follows:-

1. Judgment for possession of the land described in the Statement of Claim;
2. Save for paragraphs 12 and 13 thereof, the Cross-Claim is struck out;
3. Particulars of the allegations made in those paragraphs are to be given within 28 days;
4. The defendant’s Notice of Motion is dismissed;
5. The defendant is to pay the costs of that Notice of Motion;
6. Any question of the issue of a writ of possession or a stay is referred to the Registrar.
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