Bengour Pty Ltd v Figtree [2020] NSWSC 1143

Supreme Court New South Wales

Medium Neutral Citation: Bengour Pty Ltd v Figtree [2020] NSWSC 1143 Hearing dates: 14 August 2020 Date of orders: 27 August 2020 Decision date: 27 August 2020 Jurisdiction: Common Law Before: Wright J Decision: (1) The defence filed by the first and second defendants on 13 May 2020 is struck out. (2) Under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), summary judgment for the plaintiff against the first defendant as follows:

(a) Judgment for the plaintiff for possession of the land described in folio identifier 52/xxxxx73 known as xx, Moss Vale, New South Wales.

(b) There is leave to issue a writ of possession in respect of the land above forthwith.

(c) The execution of the writ of possession is stayed up to and including 5 pm on Wednesday 30 September 2020. (3) Under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), summary judgment for the plaintiff against the second defendant as follows:

(a) Judgment for the plaintiff for possession of the land described in folio identifier 52/xxxxx73 known as xx, Moss Vale, New South Wales.

(b) Judgment for the plaintiff for possession of the land described in folio identifier 1/xxxx26 known as xx, Mittagong, New South Wales.

(c) Judgment for the plaintiff for possession of the land described in folio identifier 2/xxxx26 known as xx, Mittagong, New South Wales.

(d) There is leave to issue a writ of possession in respect of each parcel of land above forthwith.

(e) The execution of the writ of possession is stayed up to and including 5 pm on Wednesday 30 September 2020. (4) The defendants are to pay the plaintiff's costs. Catchwords: LAND LAW – Possession of land – Default on mortgages – Whether defence or proposed amended defence and proposed amended cross claim disclosed a reasonable defence to claim for possession – Mortgagee entitled to possession – Leave granted to issue writs of possession CIVIL PROCEDURE – Striking out of pleadings – Whether defence disclosed a reasonable defence to claim for possession – Defence struck out CIVIL PROCEDURE – Summary dismissal – Whether any matters pleaded or proposed to be pleaded by the defendants constituted an arguable defence to the claim for possession – Summary judgment ordered Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law National Consumer Credit Protection Act 2009 (Cth) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Category: Principal judgment Parties: Bengour Pty Ltd (Plaintiff) Grant Richardson Figtree (First Defendant) Rose Marie Veronica Figtree (Second Defendant) Representation: Counsel: M Young SC (Plaintiff) J O'Sullivan (First and Second Defendants)