S K and N S Kelberg Super Investment Pty Ltd v Meyer

[2024] NSWSC 885

Supreme Court

New South Wales

Medium Neutral Citation:

S K and N S Kelberg Super Investment Pty Ltd v Meyer [2024] NSWSC 885

Hearing dates:

22 July 2024

Date of orders:

22 July 2024

Decision date:

22 July 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence dated 16 May 2024 struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

2. Judgment for the plaintiff for possession of the land comprised in folio identifier Lot 4 in Deposited Plan 260275, being the land situated at and known as 202 Molkentin Road, Jindera NSW 2642.

3. Leave to issue a writ of possession forthwith, such writ not to be executed before 2 September 2024.

Catchwords:

LAND LAW – possession of land – default under mortgage – where defence does not disclose a defence to the claim – defence struck out – default judgment for possession

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

S K and N S Kelberg Super Investment Pty Ltd (First Plaintiff)
B J & K M Sweeney Super Pty Ltd (Second Plaintiff)
Dale Stephen Meyer (First Defendant)
Fiona Kathleen Peters-Meyer (Second Defendant)

Representation:

Counsel:
T Symons (Plaintiffs)
No appearances (First and Second Defendants)

Solicitors:
Summer Lawyers (Plaintiffs)
Self-represented (First and Second Defendants)

File Number(s):

2024/125508

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 4 April 2024, seeking possession of land at XXX Molkentin Road, Jindera. The basis for the claim was a default under a loan agreement which was entered into on 13 September 2022. Under that loan agreement the plaintiff loaned the amount of $370,000 to a company called CV Equestrian Pty Limited.

2. The first and second defendants are alleged to be shareholders of that company, and the first defendant is alleged to be the sole director and secretary of the company. Those defendants, who are the registered proprietors of the property, had guaranteed the loan made to the company. The expiry date of the loan was 20 April 2023, but the loan was not repaid at that time or thereafter.

3. After the statement of claim was filed it appears that a defence, said to be a defence for the first defendant, was filed on 16 May 2024. Justice Link indicates that the defence was rejected for filing. However, a copy of the defence which is on the court file discloses that it was e-filed on 16 May 2024. It does not appear, however, to have been served on the plaintiff. Accordingly, the plaintiff on 19 June 2024 filed a notice of motion for default judgment.

4. The defence said this, under the heading “Pleading and Particulars”:

1. The claim is correct. 2. The loan was given to eleviate (sic) financial pressures and continued property development Finance broker Trevor Scott had been dealing with claimants. We where (sic) under the belief that a refinance is imenant (sic) 3. [XXX] molkentin rd (sic) Jindera is a farm a has (sic) livestock currently running on it. 4. We propose to list out property to service this debt. The property has a current bank valuation of 2.1-2.4m. 5. We intend to engage McGrath real estate. 6. Property in our region is in high demand. 7. We request a stay on proceedings of 90 days to finalise a sale.

5. The matter came before me on 10 July 2024 on a reference from the registrar, but by reason of the fact that it appeared a defence had been filed prior to the notice of motion being filed.

6. On 10 July Mr Meyer, the first defendant, appeared by AVL. He did not have a lawyer acting for him. I indicated to him that the defence he had filed did not disclose a defence to a claim for possession. Mr Meyer said that a finance broker, Trevor Scott, was in the process of organising a refinancing of the loan.

7. I informed Mr Meyer on 10 July 2024 that I was prepared to adjourn the matter until today, but that prior to today he would have to provide the court and the plaintiff with documentary evidence showing the state of any refinance that was being obtained. In the absence of the provision of that documentary evidence, I indicated to him that his defence would be struck out and judgment given against him.

8. I gave Mr Meyer leave to appear via AVL again today because he lives in the vicinity of Albury, some considerable distance from the court. Mr Meyer has not appeared this morning although an AVL link was provided to him, and no evidence has been provided either to the plaintiff or to the court.

9. On 10 July, I raised with Mr Meyer that fact that the second defendant had not filed a defence. He informed me that the second defendant was his wife, and the defence filed, although it said “filed for the first defendant” was intende4d to be the defence for both of them.

10. The defence filed 16 May 2024 will be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). I have read the affidavit of Karen Joy McFadyn sworn 18 June 2024, which provides the necessary information to justify a default judgment. That affidavit in turn refers to the affidavit of the service of the defendants by Darren Martin sworn 22 April 2024.

11. I am satisfied, in all the circumstances, that the plaintiff is entitled to judgment for possession of the land.

12. I make the following orders:

(1) Defence dated 16 May 2024 struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW)

(2) Judgment for the plaintiff for possession of the land comprised in folio identifier Lot 4 in Deposited Plan 260275, being the land situated at and known as 202 Molkentin Road, Jindera NSW 2642.

(3) Leave to issue a writ of possession forthwith, such writ not to be executed before 2 September 2024.

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Decision last updated: 23 July 2024