Stacks Managed Investments Ltd v Macleods Creek Pastoral Company Pty Ltd
[2018] NSWSC 926
•19 June 2018
Supreme Court
New South Wales
Medium Neutral Citation: Stacks Managed Investments Ltd v Macleods Creek Pastoral Company Pty Ltd [2018] NSWSC 926 Hearing dates: 19 June 2018 Date of orders: 19 June 2018 Decision date: 19 June 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) The defence filed 30 May 2018 is struck out.
(2) There will be judgment pursuant to r 13.1 for the plaintiff for possession of the whole of the land contained in folio identifiers 1/256123, 17/717726, 7/751503, 10/751503, 13/751503, 14/751503, 26/751503, 27/751503, 18/751503 and 19/751503, being the property situated and known as MacLeods Creek Station, 1542 Long Gully Road, Drake, New South Wales.
(3) The defendant is to pay the plaintiff's costs of the proceedings.
(4) The plaintiff has leave to issue a writ of possession, such writ not to be executed before 14 August 2018.Catchwords: CIVIL PROCEDURE – hearings – adjournments – summary judgment application – defence disclosing no defence to the claim – plea of the general issue – repeated failure to file amended defence – no reasonable explanation for delay in filing amended defence – adjournment refused – summary judgment ordered Legislation Cited: Farm Debt Mediation Act 1994 (NSW) s 11
Real Property Act 1900 (NSW) s 57
Uniform Civil Procedure Rules 2005 (NSW) rr 13.1, 14.20, 36.8Cases Cited: Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Texts Cited: Nil Category: Principal judgment Parties: Stacks Managed Investments Ltd (Plaintiff)
Macleods Creek Pastoral Company Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
A Cheshire SC (Plaintiff)
P Russell (Defendant)
Bransgroves Lawyers (Plaintiff)
Russells Law (Defendant)
File Number(s): 2017/375513 Publication restriction: Nil
Judgment
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The defendant entered into a loan agreement secured by mortgage on 30 June 2005. The amount of the money loaned by the plaintiff to the defendant was $600,000 and the term of the loan was for one year to 1 July 2006.
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Between that date and June 2017 there have been about a dozen variations of the loan arrangements between the parties. The principal sum has been increased and subsequently reduced so that the final principal sum outstanding after the variation of June 2017 was $2,046,250. Somewhat unusually, the last variation which extended the term of the loan was on 1 July 2009 when the loan was extended to 1 June 2010.
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There have been other defaults since the last variation in June 2017, and on 7 November 2017 a notice under s 57(2)(b) of the Real property Act 1900 (NSW) was served by the plaintiff. There is some evidence to suggest that after that time negotiations were entered into between the parties, subsequent to which the defendant paid or arranged for the payment of $100,000 to reduce what was outstanding. No other amounts have been paid since that time.
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The present amount outstanding comprises principal of $1,946,250 and interest of $1,790,775.27.
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Proceedings were commenced by statement of claim filed 12 December 2017. There was a delay in service of the statement of claim and associated documents, but these were ultimately served in April 2017.
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On 30 May 2018 a director of the defendant, Mr Reinhardt, filed a defence on behalf of the defendant which said this,
The defendant does not admit the allegations in paragraphs 1 to 25 of the plaintiff's statement of claim because, despite having made enquiries in the time permitted to file this pleading, it remains uncertain of the truth or falsity of the allegation.
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That defence does not constitute a good defence in law because it amounts to a pleading of the general issue contrary to R 14.20 UCPR. In any event, in possession list proceedings defences are required to be substantively pleaded; mere denials and non-admissions do not demonstrate a good defence.
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On 8 June 2018 the plaintiff filed a notice of motion seeking that the defence be struck out and that there be summary judgment for the plaintiff in respect of the statement of claim.
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Prior to the filing of the defence, the defendants retained a solicitor in Brisbane. On 17 April, the solicitor, on instructions, forwarded a section 8 notice and a form 6 under the Farm Debt Mediation Act1994 (NSW). The plaintiff's solicitor responded by pointing out that on 7 June 2016 the director on behalf of the defendant had filed a section 11 notice under that Act waiving the right to a farm debt mediation. That notice is valid until 7 June at 2019.
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The notice of motion comes before me for hearing today and the defendant seeks an adjournment of that motion to enable a further defence to be filed by 26 June.
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In support of that application two affidavits of the defendant's solicitor are relied upon. The first of those affidavits provides evidence on information and belief from the director of the defendant. Paragraph 6 of that affidavit says that the director resides in Brisbane, that he has travelled extensively on business in New South Wales since first being served with the proceedings, and that he had business commitments which required him to travel in the period 15 April to 15 June 2018. The solicitor then sets out two pages of what amounts to a summary of the director’s diary with the intention of showing why he has not been available in the period 15 April to 14 June to attend to the matter and to provide a further defence.
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On 8 June the solicitor wrote to the plaintiff's solicitor saying that the client proposed to amend its defence and that a copy of the revised pleading would be provided to the plaintiff's solicitor's early in the following week, that is the week commencing 11 June. No such defence was provided.
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On 14 June the matter came before the Registrar for directions, and he listed the summary judgment motion before me today. The Registrar also directed that the defendant was to furnish a copy of the proposed amended defence to the plaintiff by close of business on 18 June 2018. That was not done. It is in those circumstances that the defendant now seeks a further period, to 26 June, in which to file and serve an amended defence, and seeks an adjournment of the hearing of the motion.
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The proposed defence will apparently contain some pleading in relation to the signing by the director of the section 11 notice in 2016 to suggest that the waiver of the right to a mediation under the Farm Debt Mediation Act was to be only for a limited period. The other defence is said to be some form of estoppel arising out of the defendant’s payment of $100,000 after negotiations were entered into following the service of the s 57(2)(b) notice.
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The basis for these defences is principally to be found in paragraph 11 of the defendant's solicitor's first affidavit. That provides as follows:
I am informed by Mr Reinhardt and I believe; that he has had meetings with Messrs Stack over the years in relation to the terms on which the plaintiff provided finance, with various sums advanced and repaid, from time to time; that the plaintiff finances several other business undertakings with which he (Mr Reinhardt) is associated and which he controls, in the course of which he was given to understand (very briefly) that the plaintiff would not enforce its securities; that he and the relevant companies complied with the conditions imposed by the plaintiff; that while he believes he may have signed a waiver of mediation under the Farm Debt Mediation Act 1994 (NSW), he agreed with Mr Stack snr that this waiver would subsist only for a limited period, which expired well before the plaintiff issued this proceeding.
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In his second affidavit sworn on 18 June 2018 the solicitor sets out a little more detail about that matter. He then goes on to say, "My firm has today briefed Mr Peter Russell to settle the defendant's amended defence." No explanation is provided at any point for why an amended defence has not been put forward at an earlier time, nor why it took until 18 June for the solicitor to brief counsel to settle the defence.
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The evidence suggesting the proposed defences to the statement of claim are vague indeed and consist of a summary of information and belief by the solicitor. One might have expected that, if the director of the defendant was able to drag himself away from his other activities, he would have sworn an affidavit explaining the circumstances around the signing of the section 11 notice of the Farm Debt Mediation Act document, and why no amended defence was filed at a much earlier time, and why it has not been filed to the present time.
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In my opinion no proper basis has been shown to adjourn the present notice of motion. The delays are unexplained.
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The High Court in Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27 said at [103] that it will almost always be necessary to put forward an explanation for a delay if an adjournment is sought in proceedings. The evidence from the solicitor concerning the director of the defendant's activities shows a somewhat contemptuous approach to the Rules of Court providing for periods of time in which defences may be filed. No justification has been made to adjourn the hearing of the notice of motion and it is refused.
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The plaintiff moves on the notice of motion filed 8 June 2018 which seeks that the defence filed by the defendant on 30 May 2018 be struck out and summary judgment be entered for the plaintiff. The defence does not disclose any defence to the statement of claim. As I have said, it amounts to a plea of the general issue. The defence will be struck out.
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The material provided in the defendant’s solicitor's affidavits of 13 and 18 June 2018 do not provide a proper basis for identifying any defences that will be filed if leave was given to do so.
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The affidavit in support of the proceedings of Paul Anthony Stack sworn 8 June 2018 demonstrates the defaults under the mortgage and the failures to pay.
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In my opinion rule 36.8 UCPR does not apply in the present circumstances because judgment for possession of land is not being sought in the absence of the defendant. In any event, a valuation report of the property dated 15 February 2018 describes structural improvements as being limited to dilapidated huts and a basic set of stock yards. A further description of the improvements in section 6 of the valuation says that there is no dwelling located on the site with a very basic set of stock yards on the Long Gully Road frontage and other yards and structural improvements considered to be of no other value to the site.
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In all those circumstances, if service on occupiers was required by the Rules, I would be minded to waive that requirement. However, I do not consider that r 36.8 has strict application.
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I make the following orders:
(1) The defence filed 30 May 2018 is struck out.
(2) There will be judgment pursuant to r 13.1 for the plaintiff for possession of the whole of the land contained in folio identifiers 1/256123, 17/717726, 7/751503, 10/751503, 13/751503, 14/751503, 26/751503, 27/751503, 18/751503, and 19/751503, being the property situated and known as MacLeods Creek Station, 1542 Long Gully Road, Drake, New South Wales.
(3) The defendant is to pay the plaintiff's costs of the proceedings.
(4) The plaintiff has leave to issue a writ of possession, such writ not to be executed before 14 August 2018.
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Decision last updated: 21 June 2018
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