National Australia Bank Limited v Qasim

[2021] NSWSC 897

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	National Australia Bank Limited v Qasim [2021] NSWSC 897
Hearing dates:	23 July 2021
Date of orders:	23 July 2021
Decision date:	23 July 2021
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Orders set out at [9]
Catchwords:	PROCEDURE – referral to pro bono legal service – application granted - reasons
Legislation Cited:	Uniform Civil Procedure Rules 2005
Category:	Procedural rulings
Parties:	National Australia Bank Limited (Plaintiff) Shaheen Qasim (Defendant)
Representation:	Counsel R Rositano, Dentons Self-represented (Defendant) Solicitors Dentons (Plaintiff) Self-represented (Defendant)
File Number(s):	2019/158890
Publication restriction:	Nil

REVISED EX TEMPORE Judgment

1. HER HONOUR: These proceedings were commenced by statement of claim on 21 May 2019. The defendant, Ms Qasim, appears for herself today, and has so far, it seems, defended the proceedings without the assistance of legal advice. Ms Qasim tells me today that she would be willing to avail herself of pro bono assistance.

2. The background to the matter is that the National Australia Bank says that the defendant has defaulted on the loan secured by three properties, one in Old Bar and two in Randwick.

3. There are two Defences on the file, one dated 4 June 2021 and the other dated 5 July 2021. As pointed out by Ms Rositano, neither of those Defences raise matters responsive to the Statement of Claim and an application has been made that they be struck out. I accede to that application because neither defence sets out any basis upon which the claim could be defended. There is simply no valid matter raised in either document.

4. There are other documents that have been filed by the defendant that also lead me to the view that Ms Qasim needs assistance. There are two “Notice to Plead Facts - Money Claims” (form 16 under Uniform Civil Procedure Rules r 14.12(2)) which also, by their content and form, indicate a lack of understanding by the defendant as to the issues relevant to the possession proceedings that are before the Common Law Division of this Court.

5. I note that there are large sums involved in the secured loan. I also note that the proceedings have stalled to some extent, I have been informed, because of complaints made to the Australian Financial Complaints Authority which I have been informed today, are now complete.

6. I accept that the plaintiff wishes the matter to proceed now as quickly as is practicable, but am of the view the matter will continue to be stalled if the defendant does not get legal assistance.

7. Uniform Civil Procedure Rules r 7.36 makes provision for referral to a barrister or solicitor if I am satisfied certain circumstances apply. I need to consider whether the person in question has adequate means to pay for a solicitor, her capacity to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter I consider appropriate.

8. It is my view that this matter is complex. It has been demonstrated that the defendant needs assistance to manage that complexity. I am satisfied that Ms Qasim has lost her earnings as a medical practitioner and so would have difficulty paying a lawyer and I consider that it is in the interests of justice to make an order referring her for pro bono legal assistance in accordance with this rule.

9. I therefore make the following orders in the matter generally:

1. The defendant is referred to the Registrar for referral to a solicitor or barrister on the pro bono panel for legal assistance, including advice in relation to the proceedings and, in particular, the drafting of a valid Defence, and to assist with representation through the next stages of the proceedings.

2. The Defences dated 4 June 2021 and 5 July 2021 are struck out.

3. The defendant is not granted leave at this stage to file her Notice of Motion dated 8 July 2021 as the defendant needs legal assistance to frame appropriate orders.

4. The defendant is to prepare and provide a copy of her proposed draft Amended Defence to the solicitors for the plaintiff on or before 17 September 2021.

5. I list the matter for directions before me at 9am on Friday 24 September 2021.

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Amendments

17 September 2021 - Par 9, order (5) - amended date from 4 September to 24 September.