Winterbottom v Lucas
[2014] NSWSC 1817
•17 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: Winterbottom v Lucas [2014] NSWSC 1817 Hearing dates: 17 December 2014 Decision date: 17 December 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave to Plaintiff to move for default judgment against Second Defendant.
2. Judgment for the Plaintiff for possession of the whole of the land comprised in Certificate of Title, Folio Identifier 147/752046 being the land situated at and known as 11 Wirreanda Road, Ingleside in the State of New South Wales (Property).
3. Costs of today and 21 November 2014 and costs associated with the entry of default judgment reserved.
4. Any Notice of Motion by Defendants regarding the setting aside of default judgment to be filed by 9 February 2015 and to be made returnable before Davies J at 9:30am on 19 February 2015. If no Notice of Motion is filed by 9 February 2015, leave to the Plaintiff to issue a writ of possession.
Catchwords: REAL PROPERTY - possession of land - defendants give vacant possession of land after default - one defendant re-takes possession - proceedings for possession repeated failures by defendants to file defences - no explanation for failures - default judgment entered Legislation Cited: Contracts Review Act 1980 (NSW) Category: Interlocutory applications Parties: David John Winterbottom ( Plaintiff)
Kevin Donald Lucas (First Defendant)
Anne Margaret (Second Defendant)Representation: Counsel:
D C Price ( Plaintiff)
M Maconachie (First Defendant)
G Drew (Second Defendant)
Solicitors:
DibbsBarker ( Plaintiff)
Azimi & Lane Lawyers (First Defendant)
Licardy & Company (Second Defendant)
File Number(s): 2014/290918
Judgment
These proceedings first came before me as Duty Judge on 15 October 2014. At that stage the Defendants had not been served. The proceedings claim possession of land at 11 Wirreanda Road, Ingleside as a result of a failure to repay a loan facility from the National Australia Bank. The Defendants are the registered proprietors of the land.
After default the NAB appointed the Plaintiff and another person jointly and severally as receivers and managers of the property. On 25 July 2014 the Defendants vacated ther property and gave vacant possession to the receivers. Thereafter, the First Defendant re-entered the property and re-took possession to the exclusion of the receivers. The Plaintiff thereafter commenced these proceedings.
When the matter came back before me on 28 October, Mr M Maconachie of counsel appeared for the First Defendant and Mr Raine of counsel appeared for the Second Defendant. Directions were made on that occasion for the Defendants to file and serve their defences and any cross-claims on or before 18 November. The proceedings were stood over to 21 November.
When the proceedings came back before me on 21 November defences and cross-claims had not been filed and served. Mr Maconachie asked me to read a draft affidavit which was signed but not sworn by his solicitor (the solicitor was apparently at home ill). This document said that the solicitor's firm had a large number of documents which needed to be collated, organised and sent to counsel. He said it would take 7-14 days to get them to counsel.
After some debate I extended the time for the Defendants to file and serve their defences and cross-claims to 12 December 2014 although a little longer time had been requested by the First Defendant because of the volume of material that the First Defendant had delivered to his solicitors.
The matter has come back before me again this morning and defences and cross-claims have still not been filed. Mr Maconachie tells me that he was only contacted, or attempts were made to contact him, earlier this week with instructions to draft a defence. There is no explanation about why he did not receive those instructions at an earlier time so that orders made on the last occasion could be complied with.
The Second Defendant says that she has had difficulty obtaining documents concerning the transactions from the First Defendant. Although she was a borrower and a registered proprietor of the property, she sees herself as effectively being in the position of a guarantor because the loans were said to have been provided for the benefit of her husband, the First Defendant.
The Plaintiff now seeks leave to file a Notice of Motion for default judgment. The only question is whether I should give a further period of time to the Defendants to file their defences or permit the Plaintiff to file for a default judgment. The Plaintiff seeks only possession in these proceedings. The proceedings were brought on hurriedly before the Duty Judge because of the re-taking of possession by the First Defendant. In those circumstances the Plaintiff moved with alacrity to obtain an order for possession of the property.
In the absence of any explanation from the First Defendant for having failed to comply again with directions to file defences, I do not think it is appropriate to give more time for that to happen. If there is in fact a defence by the First Defendant to these proceedings, that will need to be established in any application to set aside the default judgment which I will permit the Plaintiff to enter.
Although Mr Drew for the Second Defendant has indicated that there are negotiations being conducted between him and the Plaintiff. If they are not successful his client would likely defend the proceedings on the basis of the Contracts Review Act 1980 (NSW). In fact his client is not in possession of the property and apparently does not claim a right to be put back into possession.
In all of those circumstances, I can see no basis for extending the time for the Second Defendant to file a defence to the proceedings. If she feels the necessity to do so after judgment, she can also apply to set aside any default judgment. Leave is given to the Plaintiff to file a Notice of Motion, dated 16 December 2014, in Court.
I have read the affidavits of service together with the affidavit in support of the Motion. I am satisfied concerning the service of occupiers of the property.
In those circumstances, there will be judgment for the Plaintiff for possession of the whole of the land referred to in certificate of title folio identifier 147/752046, known as 11 Wirreanda Road, Ingleside, New South Wales.
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Decision last updated: 19 December 2014
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