Prime Capital Securities Pty Ltd v Hoare

[2016] NSWSC 571

Supreme Court

New South Wales

Medium Neutral Citation:	Prime Capital Securities Pty Ltd v Hoare [2016] NSWSC 571
Hearing dates:	6 May 2016
Date of orders:	06 May 2016
Decision date:	06 May 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Defence dated 1 April 2016 is struck out. 2. Any amended defence on behalf of the Defendants is to be filed and served by close of business on 20 May 2016. If any defence is not filed by that time, the Plaintiff is granted leave to move for default judgment.
Catchwords:	REALPROPERTY – possession of land – default under mortgage – defendants initially unrepresented -Defence filed does not disclose defence to claim – Defence struck out – defendants given leave to file further defence
Category:	Procedural and other rulings
Parties:	Prime Capital Securities Pty Ltd (Plaintiff) David Bradwyn Hoare (First Defendant) Elizabeth Anne Rex (Second Defendant)
Representation:	Counsel: T Nelmes (Plaintiff) C Lee (Defendants)   Solicitors: Gadens Lawyers (Plaintiff) Murdock Cheng Legal Practice (Defendants)
File Number(s):	2016/24514

Judgment

1. These proceedings commenced on 25 January 2016, seeking possession of land at 89 Dareen Street, Frenchs Forest. The claim for possession is based on default under a mortgage given by the Defendants who were guarantors of the loan made to a company known as 89 Dareen Street Pty Limited of which they appear to be the directors and shareholders.

2. That loan agreement was made on 9 March 2015 and was for an amount of $750,000. A default appears to have occurred by November 2015 and continued until January 2016, leading to the filing of the proceedings.

3. On 1 April 2016 a Defence was filed by the Defendants, acting for themselves. In general terms, the defence amounts to a denial of everything that is asserted and makes reference to severe financial duress, which I take to be duress on behalf of the guarantors. In any event, the Defence does not clearly articulate what the Defendants' defence to the claim is, particularly in circumstances where it appears that the bulk of the borrowed funds were used to pay out a prior mortgagee.

4. The matter came before the Registrar on 22 April. It seems that by that stage the Defendants had just engaged solicitors, and an order was made by the Registrar granting leave to the Defendants to file and serve an amended defence by 29 April. That has not occurred.

5. Ms Lee of counsel appears for the Defendants today. She advised me that she had come into the matter in the last day, although her solicitors have been engaged for some weeks before that. The only explanation offered for the failure to comply with the Registrar's order is that the Defendants' new solicitor was away overseas for some days, and thereafter has been endeavouring to get on top of a large amount of material provided to him by his clients to prepare a proper defence in the claim.

6. In all of the circumstances, I am prepared to give the Defendants a further period in which to file an amended defence. The Defence filed on 1 April does not comply with the Rules of Court and the principles of pleading, and is struck out.

7. Any amended defence on behalf of the Defendants is to be filed and served by close of business on 20 May 2016. If any defence is not filed by that time, the Plaintiff will be free to move for default judgment.

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Decision last updated: 10 May 2016