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
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)
Solicitors: Kent Attorneys (Plaintiffs)
Mr D Allen (First Defendant)
Kekatos Lawyers (First Defendant)
File Number(s): 2019/00354056 Publication restriction: Nil
Judgment
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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.
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The Plaintiffs, Mr Rodney Kent and Mr Timothy…
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- Case
- [2021] NSWSC 326
- Decision Date
CaseChat Overview and Summary
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
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Background
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