Westpac Banking Corporation Ltd v Macabil Pty Ltd

[2020] NSWSC 176

Supreme Court

New South Wales

Medium Neutral Citation:	Westpac Banking Corporation Ltd v Macabil Pty Ltd [2020] NSWSC 176
Hearing dates:	4 March 2020
Date of orders:	04 March 2020
Decision date:	04 March 2020
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Defence dated 26 November 2019 struck out. 2. Leave to the defendant to file and serve amended defence by 25 March 2020. 3. Listed for Directions before Davies J at 9:30am on 1 April 2020. Leave to Ms Nott to appear via telephone conference on that day. 4. Plaintiff’s Notice of Motion filed 10 February 2020 for summary judgment to be heard at 9:30am on 1 April 2020 should an amended defence not be filed nor provide a proper defence to the claim. 5. Parties granted liberty to apply on 2 days’ notice to Associate.
Catchwords:	LAND LAW – possession of land – default under mortgage – whether Defence discloses any defence to the claim
Legislation Cited:	Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Westpac Banking Corporation Limited (Plaintiff) Macabil Pty Ltd (Defendant)
Representation:	Counsel: L Hatton (Plaintiff) B Nott (Defendant)   Solicitors: Thomson Geer Lawyers (Plaintiff) Self-represented (Defendant)
File Number(s):	2019/177341
Publication restriction:	Nil

Judgment

1. These proceedings commenced by the filing of a statement of claim on 6 June 2019 seeking possession of land at unit 8/5 Dixon Place, Lismore. The basis for the claim was a loan agreement of 23 December 2011 which was secured by a mortgage. The loan was for an amount of $390,000, and the expiry date for the loan was varied on 16 February 2014 so that the loan became repayable on 8 January 2016.

2. An amended statement of claim was filed on 3 July 2019 and an affidavit of service off Pip Ashleigh Nagam sworn 6 December 2019 swears that a copy of that amended statement of claim was served in accordance with s109X of the Corporations Act 2001 (Cth) at the registered office, being 64 Hazelmount Lane, Tucki Tucki.

3. A defence was filed by an individual who was authorised by the company to act in respect of the claim. That person is Belinda Nott.

4. The defence in its entirety says this:

1. I dispute the amount payable in the statement of claim.

2. There is a genuine dispute of the amount payable.

3. The defendant or their representatives have not been served with a statement of claim, nor the amended statement of claim, and are not aware of any facts which the plaintiff relies on.

4. The defendant only became aware of the statement of claim when they were served with a notice to occupier on or about 29 October 2019.

5. These proceedings were before the Registrar on 10 December 2019 when directions were made for the filing and serving of evidence. The proceedings ought to have been referred to a Judge for judicial directions. This morning Ms Nott has appeared by telephone in relation to the judicial directions.

6. It is clear that the real dispute between the parties is the amount owing under the loan. The defendant claims that a portion of the principal, amounting to $150,000, was repaid but that the total claim is still in the order of $450,000. It seems to be accepted that the principal or the balance of the principal has not been repaid, and must be repaid. In any event, the present defence does not provide any defence to the claim which is a claim for possession only.

7. The plaintiff has sought, by a motion filed 10 February 2020, not only to have the defence struck out but in the alternative, to have summary judgment entered for possession of the land. Because the defendant is appearing without the present assistance of a lawyer, although I intend to strike out the defence, I am prepared to give the defendant one further opportunity to file a defence which pleads a substantive defence to the claim for possession that is made.

8. Accordingly, I make the following orders:

1. Defence dated 26 November 2019 struck out.

(2)   Leave to the defendant to file and serve amended defence by 25 March 2020.

(3)   Listed for Directions before Davies J at 9:30am on 1 April 2020. Leave to Ms Nott to appear via telephone conference on that day.

(4)   Plaintiff’s Notice of Motion filed 10 February 2020 for summary judgment to be heard at 9:30am on 1 April 2020 should an amended defence not be filed nor provide a proper defence to the claim.

(5)   Parties granted liberty to apply on 2 days’ notice to Associate.

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