Wong v Novakovic [2021] NSWSC 1381

Supreme Court New South Wales

Medium Neutral Citation: Wong v Novakovic [2021] NSWSC 1381 Hearing dates: 28 October 2021 Date of orders: 4 November 2021 Decision date: 04 November 2021 Jurisdiction: Common Law Before: Davies J Decision: (1) Paragraphs 8, 9, 10, 12, 13, 14 and 15 of the defence of the second defendant filed 11 June 2021 are struck out (2) Paragraphs 3 and 4 of the cross-claim filed 11 June 2021 are struck out. (3) Leave to the second defendant to re-plead. Any amended defence and cross-claim are to be filed and served by 18 November 2021. (4) The second defendant is to pay the plaintiff's costs of the notice of motion filed 8 September 2021. Catchwords: CIVIL PROCEDURE – pleadings – form and content of pleading – inconsistency of pleading – claim for possession of land – alleged default under mortgage – where mortgagor admitted signing mortgage but denied allegation that mortgage entered into – where cross-claim by mortgagor sought relief under the Contracts Review Act – where defence of non est factum unavailable – whether inconsistent pleadings permitted to stand – pleadings struck out Legislation Cited: Civil Procedure Act 2005 s 56 Contracts Review Act 1980 (NSW) Real Property Act 1900 (NSW) ss 36, 57 Uniform Civil Procedure Rules 2005 (NSW) r 14.18 Cases Cited: Chung Wah Wong v Ivan Novakovic [2021] NSWSC 1130 Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited (2009) 75 NSWLR 42; [2009] NSWCA 186 Permanent Trustee Company Limited v Frazis [1999] NSWSC 319 Petelin v Cullen (1975) 132 CLR 355 Small v Gray [2004] NSWSC 97 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Texts Cited: Nil Category: Procedural rulings Parties: Chung Wah Wong (Plaintiff) Ivan Novakovic (First Defendant) Susan Novakovic (Second Defendant) Perpetual Corporate Trust Limited (Third Defendant) Representation: Counsel: J O'Sullivan (Plaintiff) No appearance (First Defendant) T Morahan (Second Defendant) No appearance (Third Defendant)