Secure Funding Pty Ltd v King

Case •

[2017] NSWSC 99

•

17 February 2017

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v King [2017] NSWSC 99
Hearing dates: 17 February 2017
Date of orders: 17 February 2017
Decision date: 17 February 2017
Jurisdiction:Common Law
Before: Davies J
Decision:

1. Defence filed 12 January 2016 struck out.
2. Leave to the Plaintiff to move for default judgment.

Catchwords: REAL PROPERTY – possession of land – mortgages – whether Defence discloses any defence to the claim – defence struck out
Legislation Cited: National Consumer Credit Protection Act 2009 (Cth)
Real Property Act 1900 (NSW)
Category:Procedural and other rulings
Parties: Secure Funding Pty Ltd (Plaintiff)
Michael Joseph King (Defendant)
Representation:

Counsel:
J de Szell (Plaintiff)
No appearance (Defendant)

  Solicitors:
Norton Rose Fulbright (Plaintiff)
Self-represented (Defendant)
File Number(s): 2016/373437

Judgment

  1. These proceedings commenced on 13 December 2016, seeking possession of a property at 180 Rockford Road, Tahmoor and seeking judgment for an amount of money said to be outstanding under a loan agreement entered into on 28 February 2008.

  2. The Statement of Claim asserts that default occurred first on 9 September 2016. Subsequent defaults took place, with the result that, by 1 December, the arrears were about $9500.

  3. The Plaintiff served a notice under section 88 of the National Consumer Credit Protection Act 2009 (Cth) and, also, under section 57 of the Real Property Act1900 (NSW) on 9 September, but the default required to be rectified has not been rectified. That led to the filing of the Statement of Claim.

  4. The Defendant, who has acted for himself, filed a Defence on 12 January saying, that he has been unable to work since August 2015, that he had approached an insurance company to get funds to clear the arrears and make future payments, that he had sold personal items to try to pay the mortgage and that the property was going to be put on to the market at a minimum price of $1 million.

  5. The matter has been referred to me for early judicial directions. The Plaintiff asks that the Defence be struck out because it does not disclose any defence to the claim. The matter was first listed before the Registrar on 9 February 2017 and, on that day, there was no appearance for the Defendant. Subsequently, the Court forwarded a letter to the Defendant at the property informing him that the matter had been listed before me today.

  6. The Defendant has not appeared this morning. I am told by the solicitor for the Plaintiff that the Defendant contacted him recently to say that he would not be attending today because he was on a cruise. I am also informed that the property has been put on to the market for sale by auction.

  7. The Defence does not disclose any defence to the claim. In those circumstances, it should be struck out.    The Plaintiff asks for leave to obtain default judgment in the matter and that leave ought to be given.

  8. The orders that I make, therefore, are the Defence filed 12 January 2017 be struck out. The Plaintiff is given leave to move for default judgment.

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Decision last updated: 20 February 2017

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