Prime Capital Securities Pty Ltd v Sydney Commercial and Governmental Floor and Wall Tiling Services Pty Ltd (No. 2)
[2016] NSWSC 543
•29 April 2016
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 (No. 2) [2016] NSWSC 543 Hearing dates: 29 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Common Law Before: Davies J Decision: Leave is refused to the Defendants to file the Defence and Cross-Claim.
Catchwords: REAL PROPERTY – possession of land – self-represented defendants – earlier defence and cross-claim struck out as not disclosing any defence nor cause of action – failure to serve further defence and cross-claim in accordance with directions – leave sought out of time to file and rely on defence and cross-claim – no defence pleaded – no cause of action pleaded – leave to file documents refused 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:
Solicitors:
M Wirth (Plaintiff)
Second Defendant in person for all Defendants
No Appearance (Second Cross-Defendant)
Kemp Strang (Plaintiff)
Unrepresented (First, Second and Third Defendants)
No appearance (Second Cross-Defendant)
File Number(s): 2015/301995
Judgment
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These proceedings commenced on 15 October 2015 seeking possession of property at 95 Crinan Street Hurlstone Park, a property owned by the Second and Third Defendants. The mortgage over that property upon which the claim of possession was based arose out of a loan made for $200,000.00 to the First Defendant on 30 December 2014.
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Default occurred by about 1 April 2015 when an amount of $6000 was due to be paid. A s57 Notice was served in August 2015 and the Loan Agreement was terminated on 11 September 2015. Demand was made on the guarantors on that date. When the money was not repaid by any of the Defendants the proceedings commenced.
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A defence was filed by the Second Defendant only on the 16 December 2015. I struck that defence out on 17 February 2016 and in a judgment I gave on that day I allowed the Second Defendant a further period of time to serve any further defence and cross-claim because neither he nor the other Defendants was represented in the matter. I twice extended the period in which the defence and the cross-claim could be served, the last date for which was the 26 April 2016.
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Subsequent to that date a folder of documents was served on the Plaintiff and handed up in court this morning. Two of the documents in that bundle of documents were identified as being a Defence and Cross-Claim which the Defendants now wish to file and rely on.
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The material contained in the Defence is largely incomprehensible. From submissions that have been made by Mr Joseph Sara today on behalf of all the Defendants and on earlier occasions I understand his complaint is that he and the Third Defendant wished to borrow a sum of money, about $90,000, and were somehow persuaded or forced to incorporate the First Defendant which would obtain a loan of $200,000.00 from the Plaintiff, although that amount of money was not required by any of the Defendants.
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The document said to be the Defence makes reference to the financial capabilities or lack thereof of the Defendants and mental health issues which the Second Defendant has suffered from. I cannot discern in the material contained in that document any defence to the claim.
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I have been informed by the Second Defendant on a previous occasion that part of the monies borrowed were used to pay out an earlier lender. I have also been informed previously and today that the amount borrowed has not been repaid to the Plaintiff. It is suggested that the Plaintiff has refused to provide information to a lender which the Second Defendant had organised to pay out the loan.
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The document described as the Defence that is now sought to be filed by the Defendants does not disclose any defence to the claim and I refuse to grant leave to file it. The document which is described as a Cross-Claim seeks punitive damages and the payment of home utility bills as a result of what is said to be the wrongful conduct of the Plaintiff. This Cross-Claim is also largely incomprehensible and makes reference, for example, to ASIC as well as the Tax Department being involved in relation to the First Defendant and makes further reference to mental health issues suffered by the Second Defendant. It does not disclose any claim against Prime Capital, the Plaintiff, nor against Gadens Lawyers, who are also named as a Cross-Defendant in the document.
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There is nothing to show that this Cross-Claim nor the earlier one I struck out in February was ever served on Gadens.
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The Second Defendant has told me previously and today that he does not intend to obtain lawyers to assist him in the matter. Having been given two opportunities to plead a proper Defence and Cross-Claim in the proceedings over a period of more than four months and having failed to do so the Defendants should not now be permitted to file the documents they seek to rely on. The Plaintiff should be permitted to move for default judgment.
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Decision last updated: 03 May 2016
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