Westpac Banking Corporation v Ageletopoulos Pty Ltd

[2013] NSWSC 1039

Supreme Court

New South Wales

Medium Neutral Citation:

Westpac Banking Corporation v Ageletopoulos Pty Ltd [2013] NSWSC 1039

Hearing dates:

5 August 2013

Decision date:

05 August 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Each of the defences filed by the Defendants on 4 July 2013 is struck out.

2. Amended Defences and any cross-claims are to be filed and served by close of business on 19 August 2013.

Catchwords:

PROCEDURE - pleadings - Possession List - early judicial directions - defences which only put Plaintiff to proof of all matters - plea of general issue - defences struck out with liberty to re-plead

Legislation Cited:

Contracts Review Act 1980
Legal Profession Act 2004

Category:

Interlocutory applications

Parties:

Westpac Banking Corporation (Plaintiff)
Ageletopoulos Pty Ltd (First Defendant)
Theo Poulos (Second Defendant)
Maria Poulos (Third Defendant)
Peter Poulos (Fourth Defendant)

Representation:

Counsel:
G Murphy (Plaintiff)
J Loxton (Defendants)
Solicitors:
Gadens Lawyers (Plaintiff)
Coopers Law Firm (Defendants)

File Number(s):

2013/32261

Judgment

1. These proceedings commenced on 30 January 2013 claiming possession of two properties owned by the Second and Third Defendants and claiming monetary sums against all four Defendants.

1. The principal borrower was the First Defendant and it entered into three separate loan agreements on 7 November 2006.

1. The Second and Third Defendants themselves borrowed directly from the Bank by a loan agreement of 6 November 2006.

1. Guarantees were provided by the Second, Third and Fourth Defendants for the loans made to the First Defendant.

1. The Fourth Defendant also guaranteed the loan to the Second and Third Defendants, and the First Defendant guaranteed the loan given to the Second and Third Defendants.

1. A default took place some time towards the end of last year, although I note that all of the loans were ultimately said to be repayable by 1 November 2009.

1. Each of the Defendants filed a defence which, apart from admitting that the Plaintiff was duly incorporated in all cases and in the case of the First Defendant also admitting that it was a customer of the Plaintiff, each of the defences simply says that the respective defendant does not admit or does not know and admit all of the remaining paragraphs in the Statement of Claim.

1. It is difficult to understand how the solicitor who certified under s 347 of the Legal Profession Act 2004 could have done that bearing in mind the responsibilities he had under that Act when those defences were filed. They amount to a plea of the general issue and they do not notify defences which would otherwise take the Plaintiff by surprise. They cannot be allowed to stand. Each of the defences filed by the Defendants on 4 July 2013 is struck out.

1. Mr Loxton of counsel has appeared this morning and proffered four amended defences. These defences at least identify matters which might be thought to give rise to Contracts Review Act 1980 defences in the case of the Second, Third and Fourth Defendants. There are also pleas in relation to breaches of the Banking code.

1. Additionally, I was told that a broker who was involved in the transaction, George Massouridis, was said to be the agent of the Bank and that seems to have prompted a plea that he has failed in his duty of care to the Defendants, such breach being brought home to the Bank by virtue of his agency. That matter does not sit at all easily with what is contained in paragraph 4 of the defences which pleads that the Fourth Defendant engaged Mr Massouridis' services and he thereafter continued to act.

1. There is a plea that the Defendants signed documents against their will, although undue influence is not expressly pleaded. There is no reference to the Contracts Review Act, nor to any other statutory defence, for example, unconscionability, despite the matters that are set out in the defences.

1. I am also told that the Defendants wish to think about bringing a cross-claim against Mr Massouridis.

1. It does not seem to me that the proposed amended defences are properly pleaded for the reasons that I have given and I am not going to permit them to be filed.

1. It is not at all clear in the light of the material contained in the First Defendant's defence what defence that Defendant has to the matter since it cannot avail itself of the Contracts Review Act and most of the material contained in the defence sets out facts that might be sought to set up such a defence.

1. Mr Loxton tells me that consideration is being given to the question of whether or not the First Defendant will in fact defend the matter. In the circumstances, the Defendants should be given another two week period to file proper amended defences and any cross-claims on which they seek to rely.

1. Accordingly, such defences and cross-claims are to be filed and served by close of business on 19 August 2013.

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Decision last updated: 06 August 2013