Westpac Banking Corporation v D'Ambrosi

[2018] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation:

Westpac Banking Corporation v D’Ambrosi [2018] NSWSC 1542

Hearing dates:

12 October 2018

Date of orders:

12 October 2018

Decision date:

12 October 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence filed 24 August 2018 struck out.

 

2. Judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 3/SP69772 being the land situated at and known as Unit 3/48 Colin Street, Lakemba in the State of New South Wales.

 

3. Leave to issue a writ of possession to enforce judgment of the Court. Writ not to be executed before 23 November 2018.

 4. Defendant to pay the Plaintiff’s costs of the proceedings

Catchwords:

LAND LAW – possession of land – mortgages – default – whether Defence discloses any defence to the claim – where defendant seeks time to repay – promise of money from relatives and new earning capacity - no evidence to support alleged sources of finance – defence struck out – default judgment entered

Legislation Cited:

National Credit Code
Real Property Act 1900 (NSW)

Category:

Procedural and other rulings

Parties:

Westpac Banking Corporation (Plaintiff)
Robert D’Ambrosi (Defendant)

Representation:

Counsel:
D Elliot (Plaintiff)
In person (Defendant)

  Solicitors:
Minter Ellison (Plaintiff)
Self-represented (Defendant)

File Number(s):

2018/244924

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 9 August 2018 seeking possession of land being Unit 3 at 48 Collins Street, Lakemba. The proceedings rely on a loan agreement entered into on 8 December 2010 whereby the defendant borrowed $184,000 from the plaintiff. By 9 January 2018 the defendant was in default to the extent of arrears being owed in a little over the amount of $15,000. A notice under s 88 of the National Credit Code and s 57 of the Real Property Act 1900 (NSW) was served on 9 January 2018 but the arrears were not brought up to date. That failure led to the commencement of the proceedings.

2. A defence was filed by the defendant on 24 August 2018. He was acting for himself. The defence in its entirety said this:

1.   I do not want to be evicted or sell my home.

2.   I would like to stay on proceedings (sic) until I can inherit as soon as possible and pay all my loans."

3. The plaintiff has moved, by a notice of motion filed 21 September 2018, to strike out the defence and to obtain judgment for possession. The matter has been before the Registrar on two occasions. The Registrar made a direction that the defendant should file an affidavit in support of his position. That was eventually filed on 9 October 2018. The affidavit said much the same as the defence had said. Various documents were attached to the affidavit showing applications that the defendant had made to refinance, although those applications were unsuccessful.

4. He also lodged a complaint in relation to the handling of his loan where he said:

I will be inheriting a sizable amount to easily pay all of what I owe and also I will be earning as a senior executive very soon. I do not have written documentation for these two improvements.

5. The defendant has appeared to today and has reiterated what appears in his documents and, in particular, that he does not have any documentation to support those two matters. As it transpires, it appears not to be an inheritance that he is expecting so much as some agreement from relatives whereby he will be receiving, he says, millions of dollars. There is no documentary material to support that or the fact that he will be earning as a senior executive. That position appears to be in his own company. The defendant asks me not to strike out his defence because he does not wish to lose his home.

6. The defence does not disclose a defence to the claim by the plaintiff. A default took place at least by 9 January 2018. The defendant has provided no proof of the matters which he says will enable him to refinance or otherwise pay out this loan. In those circumstances, the defence filed 24 August 2018 will be struck out.

7. The affidavits in support of the notice of motion of Vardi Vaezi, affirmed 20 September 2018 and Rachel Marie Rouyanian sworn 20 September 2018 would, in any event, support a judgment on a summary judgment basis. But since the defendant does not indicate any defence to the claim, the plaintiff is, in the light of the defence being struck out, entitled to the default judgment.

8. The plaintiff is prepared to grant the defendant a six week period before execution of any writ of execution that is issued to enforce the judgment. Since the premises concerned are the defendant's own home, I consider that a six week period is appropriate in that regard. If the defendant is able to produce some evidence of a likely ability to refinance or otherwise satisfy the loan arrangement and mortgage, he will be able to make an application with that evidence to stay the writ of possession.

9. Accordingly, I make the following orders:

(1)   Defence filed 24 August 2018 struck out.

(2) Judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 3/SP69772 being the land situated at and known as Unit 3/48 Colin Street, Lakemba in the State of New South Wales.

(3) Leave to issue a writ of possession to enforce judgment of the Court. Writ not to be executed before 23 November 2018.

(4)   Defendant to pay the Plaintiff’s costs of the proceedings.

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Decision last updated: 12 October 2018