Wong v Novakovic - [2021] NSWSC 1381

Supreme Court

New South Wales

Medium Neutral Citation: Wong v Novakovic [2021] NSWSC 1381
Hearing dates: 28 October 2021
Date of orders: 4 November 2021
Decision date: 04 November 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Paragraphs 8, 9, 10, 12, 13, 14 and 15 of the defence of the second defendant filed 11 June 2021 are struck out
(2) Paragraphs 3 and 4 of the cross-claim filed 11 June 2021 are struck out.
(3) Leave to the second defendant to re-plead. Any amended defence and cross-claim are to be filed and served by 18 November 2021.
(4) The second defendant is to pay the plaintiff’s costs of the notice of motion filed 8 September 2021.

Catchwords:
CIVIL PROCEDURE – pleadings – form and content of pleading – inconsistency of pleading – claim for possession of land – alleged default under mortgage – where mortgagor admitted signing mortgage but denied allegation that mortgage entered into – where cross-claim by mortgagor sought relief under the Contracts Review Act – where defence of non est factum unavailable – whether inconsistent pleadings permitted to stand – pleadings struck out

Legislation Cited:
Civil Procedure Act 2005 s 56
Contracts Review Act 1980 (NSW)
Real Property Act 1900 (NSW) ss 36, 57
Uniform Civil Procedure Rules 2005 (NSW) r 14.18

Cases Cited:
Chung Wah Wong v Ivan Novakovic [2021] NSWSC 1130
Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited (2009) 75 NSWLR 42; [2009] NSWCA 186
Permanent Trustee Company Limited v Frazis [1999] NSWSC 319
Petelin v Cullen (1975) 132 CLR 355
Small v Gray [2004] NSWSC 97
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Texts Cited:
Nil

Category: Procedural rulings
Parties: Chung Wah Wong (Plaintiff)
Ivan Novakovic (First Defendant)
Susan Novakovic (Second Defendant)
Perpetual Corporate Trust Limited (Third Defendant)
Representation:
Counsel:
J O’Sullivan (Plaintiff)
No appearance (First Defendant)
T Morahan (Second Defendant)
No appearance (Third Defendant)
Solicitors:
Penhall & Co (Plaintiff)
Self-represented (First Defendant)
Infinity Law Group (Second Defendant)
Thomson Geer (Third Defendant)

File Number(s): 2021/136452
Publication restriction: Nil

Judgment

The plaintiff seeks judgment for possession of land at 3 Dales Road, Silverdale. The claim is said to be based on a loan agreement and a second mortgage entered into by the defendants on 17 June 2019.
The first and second defendants were respectively husband and wife, and the registered proprietors of the land. The third defendant, Perpetual Corporate Trust Limited, is the first registered mortgagee. Although no orders are sought against the third defendant, it has filed an ordinary appearance in the proceedings.
Orders for substituted service on the first defendant were made by Campbell J on 8 September 2021: Chung Wah Wong v Ivan Novakovic [2021] NSWSC 1130. Despite service having been effected on the first defendant pursuant to those orders, he has not appeared in the proceedings.
The second defendant has appeared and filed a defence and a cross-claim on 11 June 2021.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wong v Novakovic

Details

AGLC: Wong v Novakovic [2021] NSWSC 1381
Case: [2021] NSWSC 1381
Decision Date: 04 November 2021

CaseChat Overview and Summary

The case of Wong v Novakovic involved a dispute between the parties over the possession of land and an alleged default under a mortgage. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Wong, sought an order for possession of the land, claiming that the defendant, Novakovic, had defaulted under the mortgage. Novakovic admitted signing the mortgage but denied that it had been entered into as claimed. She also filed a cross-claim seeking relief under the Contracts Review Act, which provides a remedy for contracts that are unconscionable or otherwise unjust. The defendant argued that she could not be held liable for the mortgage on the basis of non est factum, a legal doctrine that allows a party to avoid a contract if there has been a significant error in the document's contents.

The court was required to determine whether the inconsistent pleadings could be permitted to stand and whether the defendant's defence of non est factum was available. The court held that the pleadings were inconsistent and that the defendant's defence of non est factum was not available to her. The court found that the defendant had admitted signing the mortgage, which was a necessary prerequisite for invoking the non est factum defence. The court also held that the plaintiff's inconsistent pleadings could not be permitted to stand as they would have caused confusion and uncertainty in the proceedings.

As a result, the court struck out the inconsistent pleadings and ordered that the matter proceed on the basis of the remaining pleadings. The court held that the defendant's cross-claim under the Contracts Review Act could proceed, but that the defendant was not entitled to rely on the non est factum defence. The court ordered that the matter proceed to trial on the remaining issues, including the plaintiff's claim for possession of the land and the defendant's cross-claim for relief under the Contracts Review Act. The court did not make any final orders in the case as the matter was still before it for further proceedings.

Orders