Rodney Kent v Batmor Mortgages Pty Ltd - [2021] NSWSC 326

Supreme Court

New South Wales

Medium Neutral Citation: Rodney Kent & Anor v Batmor Mortgages Pty Ltd & Ors [2021] NSWSC 326
Hearing dates: 3 March 2021
Date of orders: 26 March 2021
Decision date: 18 March 2021
Jurisdiction: Equity - Real Property List
Before: Rein J
Decision:
See [41]-[42]

Catchwords:
CIVIL PROCEDURE — Default judgment — Default in filing defence — (1) Notice of Motion filed by the Plaintiffs seeking summary or default judgment for failure to file a defence within the time prescribed by the UCPR; (2) Notice of Motion filed by the First Defendant approximately 10 months after the Amended Statement of Claim was filed and served seeking leave to file a defence and cross-claim — Held: (1) First Defendant failed to justify its delay in filing its proposed defence and cross-claim; (2) First Defendant’s proposed defence and cross-claim failed to disclose reasonable prospects of success — obiter discussion of penalties; (3) Leave for the First Defendant to file the proposed defence and cross-claim refused; (4) Judgment entered in favour of the Plaintiffs against the First Defendant in the sum of $1,601,340.85.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:
Acron Pacific Ltd v Offshore Oil NL (1985) 157 CLR 514
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Avco Financial Services Ltd v Commonwealth Bank (1989) 17 NSWLR 679
Batmor Mortgage Pty Ltd dealing as Trustee of the Residential Trust v Rodney Kent trading as Kent Attorneys, unreported, Supreme Court of New South Wales, 5 June 2018
Blythe v Northwood (2005) 63 NSWLR 531
Commonwealth Bank of Australia v Estate of the Late Mahmoud Slieman [2010] NSWSC 661
Di Gregorio v Jersey Developments 27 Pty Ltd [2018] NSWSC 966
Hartigan v International Society for Krishna Consciousness Inc [1999] NSWSC 57
Juul v Northey [2010] NSWCA 211
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198
O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Tom Kerr (Subaru) Pty Ltd v Hanks [2018] NSWSC 1871

Texts Cited:
Nil

Category: Principal judgment
Parties: Rodney Kent (First Plaintiff)
Timothy Orlizki (Second Plaintiff)
Batmor Mortgages Pty Ltd (First Defendant)
Westpac Banking Corporation (Second Defendant)
Chief Commissioner of State Revenue (Third Defendant)
Prosperity Max Pty Ltd (Fourth Defendant)
Steven Alexander Clements (Fifth Defendant)
Gail Jacqueline Simpson (Sixth Defendant)
Worldwide Finance Group Pty Ltd (Seventh Defendant)
Representation:
Counsel: Mr M Young SC (Plaintiffs)
Mr D Allen (First Defendant)
Solicitors: Kent Attorneys (Plaintiffs)
Kekatos Lawyers (First Defendant)

File Number(s): 2019/00354056
Publication restriction: Nil

Judgment

Batmor Mortgages Pty Ltd (“Batmor”) is the trustee of a trust known as the Residential Trust (“the Trust”). The sole significant property of the Trust was, until recently, a property at Warrimoo Avenue, St Ives (“the Property”), of which Batmor was the registered proprietor.
The Plaintiffs, Mr Rodney Kent and Mr Timothy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Rodney Kent v Batmor Mortgages Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 326
Decision Date: 18 March 2021

CaseChat Overview and Summary

In the case of Rodney Kent v Batmor Mortgages Pty Ltd, the plaintiffs, Rodney Kent, sought a summary judgment against Batmor Mortgages Pty Ltd (the first defendant) due to the first defendant's failure to file a defence within the time prescribed by the Uniform Civil Procedure Rules (UCPR). The proceedings involved a dispute related to a mortgage loan that was allegedly not discharged by the first defendant despite the plaintiffs having paid off the loan in full. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the first defendant could be granted leave to file a defence and cross-claim, despite the significant delay in doing so. The court considered whether the first defendant had a justifiable reason for the delay and whether the proposed defence and cross-claim disclosed reasonable prospects of success. The plaintiffs argued that the first defendant's delay was inexcusable and that the proposed defence and cross-claim lacked merit. The first defendant, on the other hand, sought leave to file its defence and cross-claim, arguing that there were reasonable grounds to do so and that the delay was excusable.

The court found that the first defendant failed to justify its significant delay in filing a defence and cross-claim. The court also determined that the proposed defence and cross-claim did not disclose reasonable prospects of success. Consequently, the court refused the first defendant's application for leave to file a defence and cross-claim. As a result, judgment was entered in favour of the plaintiffs against the first defendant in the sum of $1,601,340.85, representing the outstanding amount on the mortgage loan, interest, and costs. The court further noted that the first defendant's delay and the lack of merit in its proposed defence and cross-claim could have led to more severe penalties, had they been considered appropriate in the circumstances.

Orders