Shiina v Park

[2017] NSWSC 966

Supreme Court

New South Wales

Medium Neutral Citation:

Shiina v Park [2017] NSWSC 966

Hearing dates:

19 July 2017

Date of orders:

19 July 2017

Decision date:

19 July 2017

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence filed 24 May 2017 struck out.

 

2. Defendant to file and serve a defence by 2 August 2017. If the defence is not filed by 2 August 2017 the Plaintiff is granted liberty to move for default judgment against both Defendants.

 

3. Listed for Directions before Davies J at 9:30am on 3 August 2017.

 4. Parties granted liberty to apply on 2 days’ notice to Associate.

Catchwords:

REAL PROPERTY – mortgages - possession of land – Defence pleads general issue – no defence shown to the claim – defence struck out with leave to re-plead

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW).

Category:

Procedural and other rulings

Parties:

Mai Shiina (Plaintiff)
Hyun Yee Park (First Defendant)
Seog Won Yoon (Second Defendant)

Representation:

Counsel:
H Kim (Plaintiff)
No appearances (Defendants)

  Solicitors:
Hans Kim Lawyer (Plaintiff)
Self-represented (Defendants)

File Number(s):

2017/119834

Judgment

1. These proceedings commenced on 21 April 2017 seeking possession of land at 35 Gooraway Drive, Castle Hill and claiming $100,000 plus interest pursuant to a deed of agreement dated 16 November 2016. The deed of agreement provided for a loan of $100,000 to the defendants by the Plaintiff.

2. The First Defendant mortgaged the property at Castle Hill to secure the loan which was made to both Defendants.

3. The Statement of Claim asserts that instalments of interest have not been paid since December 2016, as was required.

4. The Defence filed on 24 May 2017 admits the loan and the mortgage, but simply denies the remainder of the allegations in the statement of claim. The Defence does not make clear if it is disputed, for example, that interest has not been paid in accordance with the deed of agreement, or otherwise why it is said there is no default in respect of the loan and the mortgage. In that regard, the Defence does not, on its face, provide any defence to the claim.

5. A party may not plead the general issue: r 14.20 Uniform Civil Procedure Rules 2005 (NSW). The denials by the Defendant without particularisation amounts to a plea of the general issue.

6. There is no appearance for the Defendants this morning.

7. My Associate was telephoned shortly before Court by the Second Defendant, saying that he could not make it to Court, although, he did not indicate why that was so. He asked for a two week adjournment but did not say why that was needed.

8. The matter has been twice before the Registrar when the Defendants have not appeared.

9. In the circumstances, the Defence filed 24 May 2017 should be struck out.

10. In accordance with the general practice of this list, where defendants are unrepresented, the Defendants will be given one further chance to file a defence which discloses a defence to the claim made. Any such defence is to be filed and served by Wednesday, 2 August 2017.

11. The proceedings are adjourned to 9.30am on Thursday, 3 August 2017, before me.

12. If no defence is filed by 2 August 2017 as directed, the Plaintiff will be at liberty to move for default judgment against both Defendants.

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Decision last updated: 20 July 2017