Supreme Court New South Wales Medium Neutral Citation: Toyota Finance Australia Ltd v State Corporation Pty Ltd [2020] NSWSC 1398 Hearing dates: 9 October 2020 Date of orders: 9 October 2020 Decision date: 09 October 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order that the second defendant's defence filed 21 April 2020 be struck out pursuant to r 14.28 of the UCPR; 2. Enter judgment for the plaintiff against the second defendant with damages to be assessed pursuant to r 13.1 of the UCPR; and 3. Order that the second defendant pay the plaintiff's costs of these proceedings, including the notice of motion. Catchwords: CIVIL PROCEDURE — Pleadings — Striking out Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 14.26, 14.28 Category: Procedural and other rulings Parties: Toyota Finance Australia Ltd (Plaintiff) State Corporation Pty Ltd (First Defendant) Pamela Judith Murphy (Second Defendant) Representation: Counsel: D Farrar (Plaintiff) (Solicitor) Second Defendant – No Appearance Solicitors: Farrar Lawyers (Plaintiff) Second Defendant – No Appearance File Number(s): 2020/00027959 Publication restriction: Nil EX TEMPORE Judgment 1. HER HONOUR: By notice of motion filed on 29 July 2020, the plaintiff seeks an order for the striking out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) of the second defendant's defence filed 21 April 2020 and judgment for the plaintiff against the second defendant with damages to be assessed pursuant to r 13.1 of the UCPR, together with an order for costs in the plaintiff's favour, including the costs of the notice of motion. 2. There has been no appearance on the hearing of the notice of motion by the second defendant. The second defendant has communicated with my associate and with the plaintiff's solicitors to the effect that she is no longer able to defend the proceedings due to unforeseen circumstances and has attached a medical certificate to that effect. She has made clear in the communications with the plaintiff's solicitors that no application was being made for an adjournment in relation to the hearing. I am satisfied in the circumstances it is appropriate to proceed with the hearing in the absence of the second defendant. (The proceedings are presently stayed against the first defendant since it is now in liquidation.) 3. On the present application, the plaintiff has read three affidavits (an affidavit of Geoffrey Noble sworn 29 May 2020, and two affidavits of the plaintiff's solicitor Danielle Francis sworn 30 July 2020 and 15 September 2020, respectively), and has tendered a vast volume of material that consists of almost the entirety of the six volumes of court book for this application, by way of an exhibit to Mr Noble's affidavit (Ex A). 4. Briefly, by way of background, the statement of claim was filed by the plaintiff (Toyota Finance Australia Ltd) on 28 January 2020. The claim made against the first defendant (State Corporation Pty Ltd), has, as noted above, since been stayed on its entry into liquidation. The claim against the second defendant (Ms Pamela Murphy) is in her capacity as guarantor of certain loans. An appearance was filed on behalf of the defendants on 7 February 2020. 5. On 16 March 2020, the defendants served their defence to the statement of claim. There was complaint raised in the defence (as pleaded) as to inadequacy of particulars. Without conceding those complaints, the plaintiff filed an amended statement of claim on 3 April 2020. On 21 April 2020, the defendants filed their defence to the amended statement of claim, which included a complaint as to the non‑production of particular documents as well as complaint as to the inadequacy of particulars. At this stage, the defendants were represented by lawyers, but I should add that, since then, the second defendant no longer has legal representation and is now self‑represented. Relevantly, however, the second defendant had the benefit of legal advice at the time of the filing of the defence to the original statement of claim and to the amended statement of claim. 6. Orders were made in April 2020 for the filing and service of evidence by the respective parties. On 20 May 2020, the lawyers representing the defendants filed a notice of ceasing to act, and the second defendant has been unrepresented since then. On 29 May 2020 and 3 June 2020, the plaintiff filed and served its evidence in chief. On 1 July 2020 orders were made for the winding up of the first defendant by the Federal Court of Australia (in proceedings NSD277/2020). 7. In the amended defence filed 21 April 2020, Ms Murphy makes a number of admissions. At [6], Ms Murphy admits that PJM Fleet Management Pty Limited (the Customer) entered into the Master Fleet Financial Agreement (the Agreement), and that she was a guarantor of the Customer and indemnifier of Toyota Finance Australia Ltd. At [7], Ms Murphy admits that the Agreement contained a written booklet with a number of terms and conditions. At [8], Ms Murphy admits that the Customer and Ms Murphy were transaction parties within the meaning of the Agreement. 8. Ms Murphy does not plead to the 536 finance agreements that were entered into in total, on the basis of an allegation that the plaintiff has failed to provide to her copies of the agreements (see [9] of the defence to the amended statement of claim). Since the original pleading, however, it is clear that particulars of the relevant documents have been provided to the second defendant, and there is a vast amount of detail provided in relation to the relevant fleet agreements (see sch 1 to the amended statement of claim; and Ex A on this application, namely exhibit GN-1 to the affidavit of Geoff Noble sworn 29 May 2020, which was first served by email on 29 May 2020). 9. Ms Murphy denies at [10] of the defence to the amended statement of claim that Toyota Finance Australia Ltd advanced funds to purchase the vehicles (although she admits that the company made payments to the Customer from time to time), and denies at [11] that the Customer was in default. However, the denial of the Customer being in default is premised on the particulars and non-production arguments to which I will return to in due course. Ms Murphy admits to receiving default notices and not taking any action in response to the default notices, but she otherwise denies [12] and [13] of the amended statement of claim. Ms Murphy admits that the Customer was placed into various forms of insolvency administration (see [14] to [16]), and admits to receiving a termination notice (at [17]), but otherwise denies the allegations made at [17] and [18] of the amended statement of claim (in reliance on the particulars argument). 10. Ms Murphy denies the commission of various breaches of the Agreement (in reliance again on the particulars argument) (at [23] of the defence to the amended statement of claim); does not plead to the allegation that some of the vehicles have been recovered (on the basis that the paragraph is said to make no allegation against her) (at [23A]); and denies that the plaintiff is entitled to the relief sought (again, in reliance on the particulars argument) (at [24]). Inconsistently with the denial at [24], in [25] of the defence to the amended statement of claim Ms Murphy admits that Toyota Finance Australia Ltd is entitled to the relief claimed. 11. The application here made by the plaintiff is that the amended defence discloses no reasonable defence, that it is embarrassing, and that it is otherwise an abuse of process. Submissions were made in writing in support of each of those contentions. 12. Briefly, it is noted that both the original defence and the amended defence were prepared with the assistance of lawyers and it cannot be said that the second defendant was not in a position to have the benefit of legal advice. Second, it is noted that the amended statement of claim was prepared due to complaints in the original defence regarding the lack of particulars and that, following the filing of the amended statement of claim, the amended defence which was filed was in effect a "regurgitation" of the original defence with small formatting changes and no substantive change to the content of the amended defence. It is submitted that this shows there was no genuine issue with the content of the original pleading, and that it was a complaint as to particulars designed to vex the plaintiff and otherwise delay the progression of the proceedings. 13. As to the non‑production argument, it is noted that Ms Murphy has admitted in both the original defence and the amended defence that she entered into the Agreement, and that it contained a number of terms and conditions in the booklet. Each of those finance agreements is subject to the terms, which she admits she executed and by which she admits she is bound. It is submitted that the failure properly to traverse [9] of the amended statement of claim constitutes an admission under r 14.26 of the UCPR; namely, that Ms Murphy is deemed to have admitted entering into the finance agreements. 14. I have been taken to sch 1 to the amended statement of claim which provides detailed particulars of the finance agreements in terms of identifying the contract number, amount financed, finance agreement date, loss on sale, make and model of the vehicle, net sale proceeds, details of the operating lease, registration number of the vehicles, termination balance, details of the term purchase agreement, termination balance plus arrears, and the vehicle identification number. It is noted that those particulars were provided prior to the filing of the amended defence. 15. Ms Murphy has given no evidence that she does not have copies of, or access, to the Agreement or the finance agreements that she admits she entered into. It is said that she clearly did not need copies of those documents for the purposes of (her legal representatives, presumably) preparing the defence and amended defence. Reliance is placed on the affidavit sworn 30 July 2020 of Danielle Francis to support the plaintiff's claim regarding the nonexistence of a defence, at least in relation to liability in respect of the allegations contained in the amended statement of claim. Although Ms Murphy is not represented on this occasion I have quite properly been taken by the plaintiff's solicitor, to the affidavit that she filed (which is an affidavit sworn 21 September 2020) in which she recognises that the claims are made against her as guarantor and that the principal debtor is the Customer; and raises issues in relation to the collection and sale of the vehicles and issues going to the quantum of the claim but which have nothing to do with the liability for the claim. 16. I accept the plaintiff's submission that the particulars and non-production arguments that are raised in the defence to the amended statement of claim cannot be accepted in view of the material that is contained in the amended statement of claim and the material in the court book. I also accept that there is an inconsistent pleading as between [24] and [25] of the defence to the amended statement of claim. I accept that the amended defence does not disclose a reasonable defence, that it is embarrassing, and that it is otherwise an abuse of process. I accept that the amended defence should be struck out. 17. The plaintiff seeks an order for judgment only in respect of liability, with damages to be assessed. I am told that the process of recovering the vehicles is not complete and the quantum of loss cannot be yet calculated. It is noted that if Ms Murphy wishes to challenge the quantum of the plaintiff's damages she can do so at the subsequent assessment hearing. 18. On that basis, the plaintiff seeks the relief set out in the notice of motion filed on 29 July 2020 and I am of the view that it is appropriate for that relief to be granted. For those reasons I make the following orders: 1. Order that the second defendant's defence filed 21 April 2020 be struck out pursuant to r 14.28 of the UCPR; 2. Enter judgment for the plaintiff against the second defendant with damages to be assessed pursuant to r 13.1 of the UCPR; 3. Order that the second defendant pay the plaintiff's costs of these proceedings, including the notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2020