Supreme Court
New South Wales
Medium Neutral Citation: Westpac Banking Corporation v Vij [2022] NSWSC 297 Hearing dates: 18 March 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence dated 19 September 2019 is struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW).
2. Leave to defendant to file any further defence by 25 March 2022.
3. Leave to the plaintiff to move for default judgment should the further defence not be filed by 25 March 2022.
4. Liberty to restore on 2 days’ notice.
Catchwords: LAND LAW – possession of land – where defendant is bankrupt – where no defence disclosed in defence filed – defence struck out
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Nil
Texts Cited: Nil
Category: Procedural rulings Parties: Westpac Banking Corporation (Plaintiff)
Sundeep Vij (Defendant)Representation: Counsel:
P Nagam (Plaintiff)
No appearance (Defendant)
Solicitors:
Thomson Geer (Plaintiff)
Self-represented (Defendant)
File Number(s): 2018/353676 Publication restriction: Nil
Judgment
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The plaintiff seeks possession of four properties, three of which are in Forest Road, Hurstville, and one of which is in Lydbrook Street in Westmead. The basis for the seeking of possession is default under loan agreements and mortgages given over the four properties in favour of the plaintiff. A default in respect of all of the properties took place in 2018 and on 21 August 2018 s 88 notices were served on the defendant, who is the registered proprietor of all of the properties.
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These proceedings commenced by the filing of a statement of claim on 17 November 2018. On 19 September 2019 the defendant, acting for himself, filed a defence which in substance said that he had tried to sell one of the properties to pay the arrears, that there was a dispute about how the plaintiff had calculated interest and that the plaintiff's method of operation called into question whether it was entitled to lend money. The defence on its face does not disclose any defence to the claim made.
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There have been lengthy delays in these proceedings by the repeated referral by the defendant of the matter to the Australian Financial Complaints Authority (AFCA). AFCA has resolved this matter in the plaintiff's favour on more than one occasion and now. It seems, finally.
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The matter has been listed for directions today and the plaintiff seeks leave either to have the defence struck out or to file a notice of motion seeking summary judgment. There is no appearance for the defendant.
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The defendant, since the matter has been before AFCA on the first occasion, has had his estate sequestrated. At the present time I do not have anything in writing from the trustee in bankruptcy saying what his attitude is to the plaintiff's seeking the possession orders. However, the plaintiff's solicitor advises me that the trustee has orally advised that he does not oppose the orders that the plaintiff seeks.
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I consider that the most efficient way of proceeding is to strike out the present defence. I will give the defendant a short period of time to file any further defence, but if no such defence is filed or if that defence does not disclose any defence to the claim, the plaintiff will be entitled to move for default judgment.
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Given that the plaintiff seeks only possession of the properties, it does not appear in any event that the defendant will have a right to appear to defend the proceedings by reason of his bankruptcy: NBA Ltd v Strik [2009] NSWSC 184; Scott v Wondel [2015] NSWSC 1577.
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I therefore make the following orders:
The defence filed by the defendant on 19 September 2019 is struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
I give leave to the defendant to file any further defence which he is entitled to file by Friday, 25 March 2022. In the event that no defence is filed by that time, the plaintiff is at liberty to move for default judgment.
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- AGLC
- Westpac Banking Corporation v Vij [2022] NSWSC 297
- Case
- [2022] NSWSC 297
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court needed to address was whether the defendant's lack of a valid defence in his filed response constituted a failure to disclose a defence, thereby warranting the court to strike out his defence. The court also needed to determine whether the plaintiff was entitled to the relief sought, which included an order for possession of the land and costs.
The court found that the defendant's defence was insufficient as it did not disclose a defence in accordance with the requirements of the Federal Circuit Court Rules. The defendant, despite being given multiple opportunities, did not provide any substantive argument or evidence to counter the plaintiff's claims. Consequently, the court struck out the defendant's defence. Given the absence of a valid defence, the court found that the plaintiff was entitled to the relief sought. The court ordered that the plaintiff be granted possession of the land and awarded costs to the plaintiff.
In summary, the court ruled in favour of the plaintiff, granting the order for possession of the land and awarding costs. The court's decision hinged on the insufficiency of the defendant's defence, which did not meet the procedural requirements for a valid defence in the circumstances.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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