Prime Capital Securities Pty Ltd v Azizi

[2023] NSWSC 297

Supreme Court

New South Wales

Medium Neutral Citation:

Prime Capital Securities Pty Ltd v Azizi [2023] NSWSC 297

Hearing dates:

29 March 2023

Date of orders:

29 March 2023

Decision date:

29 March 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defences filed 20 February 2023 struck out.

2. Any further defences to be filed and served by 6 April 2023.

3. Listed for Directions before Davies J at 9:45am on 12 April 2023.

Catchwords:

CIVIL PROCEDURE - pleading – possession pleadings – defences pleading the general issue – no defence disclosed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 14.20

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Prime Capital Securities Pty Ltd (Plaintiff)
Jacqueline Mary Azizi (First Defendant)
Hasna Azizi (Second Defendant)

Representation:

Counsel:
R O’Donnell (Plaintiff)
C Hanna (First & Second Defendants)

Solicitors:
QBM Lawyers (Plaintiff)
Takchi & Associates (First & Second Defendants)

File Number(s):

2022/360959

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 30 November 2022 claiming possession of land. The claim is made on the basis of a mortgage given by the defendants, who were the guarantors of a loan made on 30 September 2021 to a company called Reboot Health Pty Ltd, of which the first defendant is the sole shareholder and director.

2. The loan was to be repaid within twelve months of the date of the advance. The advance was made on 8 October 2021, and according to the statement of claim, has not been repaid.

3. A defence was filed separately by each of the defendants seemingly at a time before solicitors were acting for them, although the defendants appear to have been provided with legal advice judging by the form of the pleading.

4. The defences, which are identical, simply admit or do not admit various paragraphs of the statement of claim. A number of the paragraphs of the statement of claim which are not admitted, such as pars 4, 5, 6, 9, 12, 13, 14 and 15, contain allegations which must be within the knowledge of the defendants.

5. The pleading breaches r 14.20 of the Uniform Civil Procedure Rules 2005 (NSW) in that the defences as a whole amount to a plea of the general issue. In addition, the defences do not disclose a defence to the plaintiff's claim for possession of the land.

6. No explanation has been provided about why, when the solicitors commenced to act in the matter, these defences were not reviewed, and an application made to amend to plea a proper defence to the claim. Accordingly, the defences filed by the first and second defendants both on 20 February 2023 will be struck out. The defendants will be given one further chance to plead proper defences.

7. I make these orders:

1. Defences filed 20 February 2023 are struck out.

2. Any further defences to be filed and served by 6 April 2023.

3. The proceedings are stood over to Wednesday 12 April at 9.45 before me for further directions.

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Decision last updated: 30 March 2023