Secure Funding Pty Ltd v Hamilton (No. 2)

[2022] NSWSC 990

Supreme Court

New South Wales

Medium Neutral Citation:	Secure Funding Pty Ltd v Hamilton (No. 2) [2022] NSWSC 990
Hearing dates:	In Chambers on the papers
Date of orders:	25 July 2022
Decision date:	25 July 2022
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Pursuant to UCPR 7.36 the defendants are referred for the pro bono assistance of a barrister to draft a Further Amended Defence and to advise on prospects of any available defence(s), and to appear.
Catchwords:	CIVIL PROCEDURE – unrepresented defendants – possession – oral request for referral – initially insufficient information supplied to satisfy Court of matters in 7.36(2) – application initially refused – further representations by email – demonstrated inability of defendants to understand and pursue issues for determination – application granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural rulings
Parties:	Secure Funding Pty Limited (Plaintiff) Wayne Keith Hamilton (First Defendant) Michele Ann Masters (Second Defendant)
Representation:	Solicitors: Norton Rose Fulbright (Plaintiff) Wayne Keith Hamilton (For Defendants)
File Number(s):	2021/00350675
Publication restriction:	Nil

Judgment

1. On 29 June 2022 I refused an oral application for pro bono assistance on the basis that I was not satisfied on the question of the defendants having exhausted their capacity to obtain assistance outside the scheme: Secure Funding Pty Ltd v Hamilton [2022] NSWSC 882.

2. The proceedings were commenced by statement of claim on 9 December 2021 and seek a writ of possession for property at Frame Drive, Sawyers Gully NSW 2326. The statement of claim alleges that at the time of its filing, a sum of over $155,000 was owed under a mortgage over that property related to a loan agreement commenced on 8 May 2007. The statement of claim pleads that there were defaults under the loan when repayments due on 4 October 2021 and 23 November 2021 were not made, and that there has been continuous arrears and so, default under the loan from 4 October 2021 to date.

3. Defences were filed on 26 April 2022 that did not articulate any allegation. The defendants did not have the benefit of on the record legal assistance at that time.

4. Pursuant to leave granted by Registrar Jones proposed Amended Defences were forwarded dated 23 May 2022. These were also prepared without the benefit of legal assistance. They seem to plead that the relevant loan contract was “subsumed” into a prior judgment dated 12 February 2009 (case number 16132/2008) and so interest charges can no longer be levied pursuant to the loan agreement entered into in 2007, but instead interest must be charged in accordance with r 36.27 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

5. Without in any way pre-judging the issues, this position may well be a misunderstanding of the nature and effect of the loan agreement and the effect, if any, that the legal proceedings had on that agreement.

6. The bases for pro bono assistance being sought by the defendants is outlined at [5] to [8] of my previous judgment in June 2022. My reasons for refusing the application at that time, but inviting further affidavit material, are set out at [11] to [17] of that judgment.

7. Upon reflection, and taking into account email correspondence by Mr Hamilton with Chambers dated 6 July and 13 July 2022, even if Mr Hamilton (and Ms Masters) had the funds to pursue legal assistance, (which I am satisfied they do not), the approach to and nature of assistance likely to be sought by them would be limited and unhelpful to the progress of the litigation given their apparently entrenched position as to the rightness of the arguments they wished to raise in their defence.

8. Mr Hamilton’s email of 13 July 2022 indicated that despite it being explained at some length at the prior directions hearings, Mr Hamilton asserts that he is incapable of preparing an affidavit, and does not understand what is required.

9. I concluded that Pro bono assistance from reliable counsel is needed to progress the matter and accordingly I refer the defendants for that assistance.

10. I am satisfied under r 7.36 of the UCPR that this referral is in the interests of the administration of justice and that the matter will stall and unacceptable delays will ensue without such assistance.

Order

11. Pursuant to UCPR 7.36, the defendants are referred for the pro bono assistance of a barrister to draft a Further Amended Defence and to advise on prospects of any available defence(s), and to appear.

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