RHG Mortgage Corporation Ltd v Summerfield

[2017] NSWSC 1204

Supreme Court

New South Wales

Medium Neutral Citation:	RHG Mortgage Corporation Ltd v Summerfield [2017] NSWSC 1204
Hearing dates:	25 August 2017
Decision date:	25 August 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application to have defence struck out refused
Catchwords:	POSSESSION – application to have defence struck out – single failure to comply with a direction of the court as to the filing of evidence – first listing after solicitor for the defendant ceased to act
Category:	Procedural and other rulings
Parties:	RHG Mortgage Corporation Ltd (plaintiff) Brian John Summerfield (first defendant) Catherine May Summerfield (second defendant)
Representation:	Counsel: G Koning (plaintiff) No appearance for the defendants   Solicitors: Dibbs Barker Lawyers
File Number(s):	2015/52745
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceeding for possession. The proceedings were before Registrar Bradford on 22 May 2017 when a timetable was fixed for filing and serving evidence. The plaintiff was directed to file and serve its evidence in chief by 19 June 2017 and that has been done, albeit two days late. The defendants were directed to serve evidence in reply by 10 August 2017. No evidence was served. On 4 August 2017 the solicitor on the record for the defendants filed notice of her intention to cease to act and on 15 August 2017 notice of ceasing to act was filed.

2. The proceedings came before Registrar Bradford this morning for directions. There was no appearance for the defendants. The matter was called three times outside the Registrar's court and there was still no appearance. In the circumstances the solicitor for the plaintiff, Mr Koning, sought to have the proceedings referred to me as Duty Judge to have the defence struck out for failure to comply with the previous directions.

3. There is authority, by which I mean power, for the Court to do so in the circumstances I have recited. However, I am of the view that since today is the first occasion on which the proceedings are listed following the solicitor's ceasing to act and since the defendant is not present, it would not be appropriate to make the order sought today.

4. I accept, as submitted by Mr Koning, that the appropriate step to take in that event is to put the defendants well on notice of the fact that such an order will be sought on the next occasion. Mr Koning has asked me to list the proceedings before the Possession List judge, Davies J, for that purpose. For those reasons I make the following orders:

1. I direct the plaintiff to write to the defendants by close of business today informing them of these orders and further informing them that they are at risk of having judgment entered against them if they do not serve their evidence in reply and appear before the Court on the next occasion;

2. Stand the proceedings over to his Honour at 9.30am on 8 September 2017.

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Decision last updated: 08 September 2017