Prime Capital Securities Pty Ltd v Sydney Commercial and Governmental Floor and Wall Tiling Services Pty Ltd

[2016] NSWSC 120

Supreme Court

New South Wales

Medium Neutral Citation:	Prime Capital Securities Pty Ltd v Sydney Commercial and Governmental Floor and Wall Tiling Services Pty Ltd [2016] NSWSC 120
Hearing dates:	17 February 2016
Date of orders:	17 February 2016
Decision date:	17 February 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Defence and Cross-Claim of Second Defendant filed 16 December 2015 struck out. 2. Any further defences and cross-claims to be served by 2 March 2016
Catchwords:	REAL PROPERTY – possession of land – form of defence filed – no defence disclosed – Cross-Claim with no cause of action identified – pleadings struck out – leave to re-plead
Category:	Procedural and other rulings
Parties:	Prime Capital Securities Pty Ltd (Plaintiff/First Cross- Defendant) Sydney Commercial and Governmental Floor and Wall Tiling Services Pty Ltd (First Defendant) Joseph John Sara (Second Defendant/Cross-Claimant) Assaf James Sara (Third Defendant Gadens Lawyers Pty Ltd (Second Cross-Defendant)
Representation:	Counsel: M Wirth (Plaintiff) No appearances (First, Second and Third Defendants) No Appearance (Second Cross-Defendant)   Solicitors: Kemp Strang (Plaintiff) Unrepresented (First, Second and Third Defendants) Gadens Lawyers Pty Ltd (Second Cross-Defendant)
File Number(s):	2015/301995

Judgment

1. These proceedings claim possession of land at Hurlstone Park owned by the Second and Third Defendants and claim a debt owing by the First Defendant and from the Second and Third Defendants as guarantors of the First Defendant's debt.

2. The loan was obtained on 30 September 2004 in an amount of $200,000. Default is said to have commenced in about April 2015, when an instalment of $6,000 due under the loan was not paid. Thereafter default continued, leading to the issue of a s 57 notice on 3 August 2015. That was not complied with, and the proceedings were commenced on 15 October 2015.

3. I am informed that substituted service has been obtained and effected against the Third Defendant. The First Defendant has been served but no defence has been filed on its behalf. The Second Defendant, who appears to be acting for himself, filed a Defence on 16 December 2015. The Defence does not comply with the Rules of Court for the pleading of a defence.

4. It is also difficult to understand, from what is contained in the document, what defence is being put forward by the Defendant. The thrust of what is contained in it appears to be that the company and the Defendants could have obtained a loan on less onerous terms from some other lender but, for reasons that are not clear, they obtained a loan from the Plaintiff. There is a suggestion that the loan was intended to be borrowed personally but the Second and Third Defendants were required to incorporate a company to obtain the loan.

5. A Cross Claim has also been filed which names Gadens Lawyers as a Second Cross-Defendant, with the Plaintiff being named as a First Cross-Defendant. It is difficult again to understand precisely what the claim is against either of the Cross-Defendants, apart from saying that the allegation is that Gadens, who were the solicitors for the Plaintiff, were somehow involved in the wrongdoing that was similar to what was alleged in the Defence.

6. The proceedings came before the Registrar on 3 February this year. A medical certificate had been forwarded to the Court on behalf of the Second Defendant saying that he was unfit to attend Court between 1 and 15 February 2016. No doubt partly for that reason the Registrar stood the proceedings over to my list today. There is no appearance for any of the Defendants.

7. The Defence and the Cross-Claim should not be allowed to stand as they do not demonstrate any defence to the claim nor cause of action against the Cross-Defendants. Because the Defendants are unrepresented, they should have one further opportunity to file a defence and a cross claim, if they so desire, to answer the proceedings. Any further defence and cross claim is to be filed by 2 March 2016.

8. I stand the proceeding over to 4 March 2016. Liberty to apply on two days' notice up till that time.

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Decision last updated: 24 February 2016